1.1 “Service” means the MAIN service(s) specified in the Order Form. Service shall also include related services (if any) provided by MAIN under this Agreement (e.g. customization, training or support).
1.2 Subscriber Account. MAIN shall establish the Subscriber Account and make the Service available to Subscriber on the date in which the final executed contract is provided to MAIN. “Subscriber Account” means the account established by MAIN for Subscriber’s access to the Service. Access to the Subscriber Account will be controlled by unique user ID and password combination.
1.3 Subscriber Company’s Information. MAIN does not collect any information from Subscriber to populate our Snapshot Data benchmarking tools. All information is collected from public sources.
1.4 Improvements. MAIN shall make available to Subscriber any updates, enhancements, modifications and improvements to the Service which are made generally available by MAIN to users of the Service without additional charge, as they are generally made available by MAIN to its Subscribers.
1.5 Changes to Service. Subscriber acknowledges and agrees that MAIN may, from time to time, in its sole discretion, modify, add to or discontinue any aspect or feature of the Service, or any module or component thereof, to improve the performance or functionality of the Service, to implement error corrections, to maintain the competitiveness of the Service, or for any other reason, provided that Subscriber shall have the right to terminate this Agreement and the applicable Order Form without penalty or liability upon written notice to MAIN if there are any material changes or modifications to the Service which could reasonably be expected to materially diminish the usefulness of the Service to Subscriber and in the event of such termination, MAIN shall refund a pro-rata portion of any fees paid by Subscriber for the Service attributable to the period following such termination. MAIN shall give Subscriber at least thirty (30) days’ prior written notice of any material modifications to the Service which could reasonably be expected to materially diminish the usefulness of the Service to Subscriber (such notice may be posted on the MAIN website, provided that a copy of such notice is also given to Subscriber by email or as otherwise provided below).
1.6 Service Availability. MAIN will use all commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for (a) planned down-time (which may be any period outside of normal business hours for which MAIN gives not less than 4 hours prior notice to Subscriber), or (b) down-time caused by circumstances beyond MAIN’s reasonable control.
1.7 Third Party Providers; Delegation of Service Obligations. Subscriber acknowledges and agrees that MAIN may receive data, data processing, or other services from third parties for inclusion in or in connection with the Service, and MAIN may delegate any obligations hereunder to subcontractors, provided MAIN will be responsible and liable for all actions and omissions of such subcontractors as it is for its own actions and inactions, and MAIN’s use of any subcontractor will not relieve it of any of its obligations under this Agreement.
1.8 Designated Contacts for Business Matters. MAIN shall designate a Primary Contact to act on its behalf with regard to business matters arising under this Agreement. It is the intention of the parties that the Primary Contact shall facilitate non-technical matters concerning this Agreement, however, the Primary Contact shall have no authority to alter or amend any term, condition, or provision of this Agreement.
2. LICENSE AND RESTRICTIONS
2.1 License. Subject to these terms, MAIN hereby grants to Subscriber and its Affiliates for the Term and any Renewal Term (defined in Section 9) a non-exclusive, perpetual, worldwide, royalty-free, fully paid, non-transferable (except as provided herein), non-sublicenseable, limited license to access and use the Service and to use the data and reports generated by the Service (collectively “MAIN Data”), solely for Subscriber’s business purposes including unlimited use in the company internal analysis, sharing Subscriber’s consultants and advisors, and for sharing of analyses focused on the Subscriber’s Company for use in the Subscriber’s regulatory and/or public filings, in presentations for shareholders and/or with any media outlet. If the company is a consulting or advisory company, use may also specifically include work generated for clients. Analyses that may be shared include any information generated by the Subscriber using the MAIN Service, (e.g. generation of charts, graphs and tables, analysis of compensation data to establish benchmarks for Subscriber’s own compensation programs, etc.). “Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with a party, or where the party owns at least 50% or more of the equity interest or voting stock, or equivalent, in such entity, whether such entity is now existing or subsequently created or acquired during the Term, and including joint ventures, subsidiaries, and other entities in which such entity is a shareholder.
2.2 This license grant extends to employees within the Subscriber’s organization. Nothing contained in these Terms shall transfer, or be deemed to transfer to Subscriber, nor any rights in or to the Service or MAIN other than those rights specifically granted in this Agreement. Except as expressly provided in the foregoing, Subscriber shall not store, reproduce, publish, transmit, broadcast, display, distribute or use the MAIN Data, or any other information derived from access to the Service and/or MAIN website.
2.3 Sharing of MAIN data with third-party contractors. Independent contractors and consultants engaged or hired to perform services for Subscriber may access the MAIN site and services for Subscriber’s business purposes as authorized herein at no additional cost to either the Subscriber or the contractor.
2.4 Restrictions. Subscriber shall not: (i) decompile, disassemble, reverse engineer, or otherwise attempt to modify, adapt, or create derivative works of any software, technology, or work of authorship within or related to the Service; (ii) resell or share the Service to or with any third party, except as expressly provided in this Agreement; (iii) allow or grant any access to the Service or MAIN Reports in any form to any party other than its duly authorized users; or (iv) remove, obscure or otherwise alter any proprietary notices, including copyright and trademark notices, contained in the Service or any MAIN Report.
2.5 Unauthorized Use; Noninterference with Service. Subscriber agrees not to: (i) use any robot, spider, other automatic device, or manual process to monitor or copy the Service, MAIN website, or any content contained therein, except as expressly provided in this Agreement, or with the prior written consent of a duly authorized representative of MAIN; (ii) use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or MAIN Website; (iii) take any action that imposes an unreasonable or disproportionately large load on the MAIN website and/or related infrastructure, provided that your authorized use shall not be deemed to violate this provision; (iv) gain unauthorized access to other computer systems through the MAIN website and/or the Service; (v) harass other users; or (vi) collect and/or store usage data, including any individually identifiable user data, about users of the Service other than Subscriber’s users. In the event of any unauthorized use of the Service by an authorized user: (a) MAIN may immediately terminate such authorized user’s access to the Service; (b) MAIN may terminate the access through the Internet Protocol (“IP”) address(es) from which such unauthorized use occurred; and/or (c) upon MAIN’s request, Subscriber shall terminate such authorized user’s access to the Service.
3. FEES AND PAYMENT
3.1 Fees. Subscriber shall pay the Subscription Fee set forth in the MAIN Order Form. All Fees shall be due as described in Subscription Terms of the Order Form.
3.2 Payment Terms. All payments will be made in U.S. Dollars upon execution of this Order Form.
3.3 Taxes. Subscriber shall be responsible for and shall pay all sales, use and value-added taxes, and any other similar taxes and charges of any kind imposed by any governmental entity with respect to the Service or any of the Fees payable under this Agreement, except for taxes based on MAIN’s net income. When MAIN has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Subscriber unless Subscriber provides MAIN with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 MAIN Ownership. As between Subscriber and MAIN, the Service and other information obtained through the MAIN website, including without limitation all software, technology, inventions, discoveries, documentation and works of authorship relating thereto, and any and all intellectual property rights related to or derived from the Service, or the manufacture or use thereof (collectively, the “MAIN Technology”), are, and at all times shall remain, the exclusive property of MAIN, and nothing in these terms shall be construed to transfer to Subscriber any ownership interest in or to the MAIN Technology or any part thereof. MAIN reserves all rights to the MAIN Technology not expressly granted to Subscriber hereunder.
5. WARRANTIES AND DISCLAIMERS
5.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. MAIN represents and warrants to Subscriber that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof under normal use and circumstances. MAIN represents and warrants that (a) the Service shall perform all material functions set out in Product Overview on page two of the Order Form (Description of Main Data Group Services), and shall otherwise operate in substantial and material accordance with such documentation, (b) MAIN will comply with and provide all Service, MAIN Data and MAIN Technology in accordance with applicable law, (c) the Service, MAIN Data and MAIN Technology or other materials provided to Subscriber by MAIN or on MAIN’s behalf under this Agreement will not: (1) violate or infringe the proprietary rights of any third party, including, but not limited to, any intellectual property rights; or (2) be libelous or obscene, nor constitute fraud, misrepresentation, unlawful business practices, or unfair competition, (d) each of MAIN’s personnel and subcontractors will have the proper skill, training, and background to be able to perform in a competent, professional, and workmanlike manner, and all Service will be performed and in accordance with the highest industry professional standards, (e) MAIN will use industry standard security measures with the Service, MAIN Data and MAIN Technology designed to protect against the transmission of any ‘back door,’ ‘time bomb,’ ‘Trojan Horse,’ ‘worm,’ ‘drop dead device,’ ‘virus,’ ‘spyware,’ or ‘malware;’ or any computer code or software routine, which permits unauthorized access to, disables, damages, erases, disrupts, or impairs the normal operation of, or use of any Subscriber system, or any component thereof, (f) MAIN will provide support services to Subscriber as requested; and (g) MAIN will use commercially reasonable efforts to provide and maintain the Service in a manner that minimizes errors and interruptions of the Service. This warranty is effective during the term of this Agreement (the “Warranty Period”). If, during the Warranty Period, the Service fails to comply with the warranty set forth in 5.1(a) of this Section, as MAIN’s sole liability and Subscriber’s exclusive remedy, Subscriber shall notify MAIN in writing of any alleged errors or non-conformities with the Service and MAIN shall, thereafter, have a reasonable period to correct such errors or non-conformities. MAIN’s sole liability and Subscriber’s exclusive remedy for breach of the warranty set forth in Section 5.1(c)(1) is indemnification pursuant to Section 6.1.
5.2 Anti-Corruption. MAIN agrees that it will comply, and it will require that anyone acting on its behalf comply, with all applicable anti-corruption laws and rules. That compliance will include, but is not limited to, the following: MAIN and anyone acting on its behalf will not give, offer, agree, promise to give, or authorize the direct or indirect giving, of any money or other thing of value to anyone to induce or reward favorable action, forbearance from action, or the exercise of influence. Notwithstanding any other provision of this Agreement, MAIN understands and agrees that this Agreement may be terminated if MAIN or anyone acting on its behalf fails to comply with this provision.
5.3 Trade Control. MAIN agrees to comply with all applicable economic sanctions, export control, and anti-boycott laws and regulations of the United States and all other applicable jurisdictions in performance of this Agreement, including but not limited to the U.S. Department of Commerce Bureau of Industry and Security’s (“BIS”) Export Administration Regulations and the economic sanctions programs administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”). MAIN represents and warrants that neither it nor any parent, subsidiary, affiliate, or associated company is included on any of the restricted party lists maintained by the U.S. Government, including the Specially Designated Nationals List and Foreign Sanctions Evaders List administered by OFAC and the Denied Parties List, Unverified List and Entity List maintained by BIS (collectively, “Restricted Party Lists”), and is not owned or controlled by a restricted party. In the performance of this Agreement, MAIN will not do business with or provide goods or services, directly or indirectly, to any company or individual on the Restricted Party Lists or to any country with which trade is prohibited by OFAC or other applicable sanctions.
5.4 DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MAIN MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE AND THE SERVICE AND MAIN DATA ARE PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MAIN SPECIFICALLY DISCLAIMS ALL CONDITIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT WITH RESPECT TO THE SERVICE AND MAIN DATA UNDER THESE TERMS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MAIN MAKES NO WARRANTY THAT THE SERVICE OR MAIN DATA WILL BE ERROR FREE OR WILL FUNCTION WITHOUT INTERRUPTION.
5.5 No Authorization for Additional Warranties. No salesperson or other representative of any party involved in the distribution of the Service is authorized to make any warranties with respect to the Service beyond those contained in these Terms. Oral statements do not constitute warranties, shall not be relied upon by Subscriber, and are not a part of these Terms.
6.1 MAIN shall defend, indemnify and hold Subscriber and its Affiliates and their respective directors, officers, employees, and agents harmless from any costs, expenses, liabilities, damages, demands, claims, expenses, suits or judgments (including reasonable attorneys’ fees) incurred as a result of any claim by a third party arising out of or on account of: (a) a claimed or alleged breach by MAIN of its representations, warranties, and obligations under this Agreement; (b) the gross negligence or willful misconduct of MAIN or its Subcontractors; or (c) any alleged or actual infringement or misappropriation of any copyright, trade secret, trademark, patent or other intellectual property right by MAIN or the Service, the MAIN Data or the MAIN Technology. MAIN shall have sole control of the defense of any such action, provided, however, that Subscriber may participate in the action at its own expense. Any settlement of the action shall require Subscriber’s prior written consent, which consent shall not unreasonably be withheld of delayed. Subscriber shall provide MAIN with all reasonable assistance and information with respect to any such claim, at MAIN’s expense.
6.2 If a third party’s claim subject to indemnification under Section 6.1(c) endangers or disrupts Subscriber’s use of the Service, MAIN shall, at no charge to Subscriber, (a) obtain a license so that Subscriber may continue use of the Service, (b) modify the Service to avoid infringement without impairment of the functionality of the Service, or (c) replace the Service with a compatible, functionally equivalent and non-infringing product; or, if options (a) through (c) cannot be accomplished under commercially reasonable terms, (d) terminate this Agreement, and refund to Subscriber a pro rata portion of the fees paid for the Service based on the remainder of the Term as of the effective date of such termination, provided that any such refund and termination shall not relieve MAIN of its obligation to indemnify, defend and hold Subscriber harmless as provided for herein.
6.3 The foregoing indemnity in Section 6.1 provides the entire set of obligations and remedies flowing between MAIN and Subscriber arising from any third-party claim of intellectual property infringement by the Service, the MAIN Data or the MAIN Technology, provided that MAIN has assumed its indemnification obligations as provided for in Section 6.1.
7. LIMITATIONS ON LIABILITY
7.1 No Liability for Business Decisions. Notwithstanding anything to the contrary, Subscriber hereby acknowledges and agrees that: (i) MAIN provides the Service solely to assist Subscriber in its research activities but that all responsibility for any investment or business decision shall remain with Subscriber and is not intended as a substitute for accounting, tax, investment, legal or other professional advice or service; (ii) With the exception of MAIN’s fraud, willful misconduct, negligence, or breach, Subscriber assumes full responsibility for any and all decisions with respect to Subscriber’s business and financial matters.
7.2 LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF THE CONFIDENTIALITY PROVISIONS IN SECTION 8 (“CONFIDENTIALITY”) AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 6 (“INDEMNIFICATION”) AND DAMAGES AS A RESULT OF A PARTY’S GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT (COLLECTIVELY, “EXCLUDED CLAIMS”), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, MULTIPLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS INFORMATION AND OTHER PECUNIARY LOSS AND COSTS OR LEGAL EXPENSES) INCURRED BY THE PARTY, ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE SERVICE, OR USE THEREOF, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUDED CLAIMS, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER OR ANY THIRD PARTY FOR ANY CLAIM OR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE SUM OF FEES PAID AND PAYABLE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING IS A REASONABLE ALLOCATION OF RISK.
8.1 “Confidential Information” means all information of a party (“Disclosing Party”) which the Disclosing Party designates as being confidential when it discloses such information to the other party (“Receiving Party”), or that, given the nature of the information or the circumstances surrounding the disclosure should reasonably be understood to be confidential to a party, including without limitation the Disclosing Party’s business and marketing plans, pricing, client information, employee information, technology and technical information, product design, and business processes (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually). Confidential Information shall not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party as evidenced by its written records; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party or was already rightfully in the Receiving Party’s possession prior to its disclosure by the Disclosing Party. Except as expressly set forth in this Agreement, MAIN agrees that, as it pertains to the Service under this Agreement, it will not collect, store, process, transmit, or access any of Subscriber’s Confidential Information for any purpose other than for the sole purpose of providing the Service to Subscriber.
8.2 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.
8.3 Notwithstanding the foregoing, it shall not be a breach of this Agreement to disclose the terms and conditions of this Agreement to a party’s attorneys, accountants, bankers, other professional advisors or potential investors in connection with a merger, acquisition, corporate reorganization, equity or debt financing, or sale of all or substantially all of its assets, or to the acquirer in such event pursuant to a confidentiality agreement.
8.4 Each party agrees to use the Confidential Information of the other party only for the purposes contemplated in this Agreement and protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own confidential information of like kind, but in no event with less than reasonable care.
8.5 If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party, to the extent permitted by law, with prior notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to seek a protective order or otherwise contest the disclosure. If no such protective order or other remedy is sought or obtained pursuant to this Section, the Receiving Party may disclose only that portion of Confidential Information that it is legally required to disclose and will use reasonable efforts to ensure that the Confidential Information disclosed will be accorded confidential treatment. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 8, the Disclosing Party may, in addition to any other available remedies, seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
9. TERM AND TERMINATION
9.1 Term. The term of the Agreement will commence on the Subscription Start Date, and continue for the period specified in the Order Form as the Initial Term. Upon expiration of the Initial Term, this Agreement will renew only upon the mutual written agreement of both parties (each a “Renewal Term”). The Initial Term and any Renewal Terms are referred to together as the “Term”.
9.2 Termination. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expiration of such thirty (30) day period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.3 Effect of Termination. Upon expiration or termination of this Agreement, all licenses granted in this Agreement terminate. Upon termination for any reason other than for material breach by Subscriber, MAIN shall refund to Subscriber on a prorated basis any fees paid to MAIN attributable to the period following the effective date of such termination. Obligations and rights under the Agreement (including its exhibits and attachments), which by their nature would reasonably continue beyond the termination or expiration will survive such termination or expiration (including all accrued rights to payment and remedies for breach), together with this Section and Sections 2.4 (Restrictions), 3 (Fees and Payment), 4.1 (MAIN Ownership), 5.4 (Disclaimers), 6 (Indemnification), 7 (Limitations on Liability), 8 (Confidentiality), and 10 (General Provisions).
10. GENERAL PROVISIONS
10.1 Entire Agreement and Construction. This Agreement (comprised of the Order Form, Parties’ Contact Information, and these Terms and Conditions, and any attached exhibits or appendices thereto) constitutes the entire agreement between the parties as to its subject matter, and supersedes all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Subscriber purchase order, MAIN’s invoice, or in any other Subscriber or MAIN form or documentation shall be incorporated into or form any part of this Agreement unless expressly agreed to by the other party in writing.
10.2 Relationship of the Parties. The parties are independent contractors, and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
10.3 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement constitutes a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.4 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice to the other party.
10.5 Force Majeure Event. If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, or providers, (a “force majeure event”) the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
10.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party except that either party may assign or transfer this Agreement without such consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, change in control or similar such transaction or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.7 Governing Law. This Agreement shall be governed by the laws of the United States and the State of California, without regard to its conflict of law provisions and will be litigated exclusively in the United States District Court for the Northern District of California; provided that if that court would lack original jurisdiction over the litigation, then the Superior Court of California, County of Santa Clara will be the exclusive forum to resolve the litigation. Each party hereby consents to the jurisdiction of such courts.
10.8 Compliance with Laws. Each party shall comply with all applicable laws in connection with its performance and exercise of rights under this Agreement, including United States and foreign export control laws or regulations.
10.9 Attorney’s Fees. If any action or proceeding is commenced to enforce this Agreement or any right arising in connection with this Agreement, the prevailing party in such action or proceeding will be entitled to recover from the other party the reasonable attorney’s fees, costs and reasonable expenses incurred by such prevailing party in connection with such action or proceeding.
10.10 Notices and Other Communications. Every notice required by this Agreement shall be in writing and shall be deemed given (i) upon receipt of by personal delivery, (ii) upon delivery if by overnight mail service by an internationally recognized mail service (e.g. Federal Express), or (iii) upon delivery if by postage prepaid return receipt requested certified mail, addressed to the party for whom intended at the addresses set forth in Page 1 of the Subscription Agreement (Billing Contact Information), or at such other address as the intended recipient shall have designated by written notice.
10.11 Marks. Neither party may use the other party’s name, logo(s), or other identifying information or image for any purpose unless specifically authorized in this Agreement. In the event Subscriber authorizes such use under this Agreement, such use will be revocable at any time by Subscriber at Subscriber’s sole discretion. The parties agree to adhere to the logo and trademark usage guidelines of the other party when using that party’s name, logo(s), or other identifying information or image.
10.12 Counterparts, Facsimile Signatures. This Agreement may be executed in counterparts, each of which is deemed to be an original and all of which together constitute one and the same agreement. Each executed counterpart may be delivered by facsimile (including email of a pdf of a scanned copy), and copies bearing the facsimile or electronic signature of a party constitute a valid and binding execution and delivery of this Agreement.