Sojo Shield Agreement - Sojo Industries

SOJO SHIELD AGREEMENT

Last Updated: December 2, 2024

THIS SOJO SHIELD AGREEMENT, ALONG WITH ANY AMENDMENTS AND ATTACHMENTS HERETO (COLLECTIVELY, THE “AGREEMENT”), GOVERNS YOUR SUBSCRIPTION TO, ACCESS, AND USE OF, THE PRODUCTS AND SERVICES (EACH AS DEFINED BELOW), AND, TOGETHER WITH ALL ORDER FORMS (AS DEFINED BELOW), FORMS A LEGALLY BINDING AGREEMENT BETWEEN SOJO INDUSTRIES, INC. (“SOJO”), AND THE PERSON OR ENTITY IDENTIFIED AS THE CUSTOMER IN AN ORDER FORM THAT INCORPORATES THIS AGREEMENT BY REFERENCE (“CUSTOMER” OR “YOU”). CUSTOMER AND SOJO ARE EACH HEREAFTER REFERRED TO INDIVIDUALLY AS A “PARTY” AND TOGETHER AS THE “PARTIES.” BY ENTERING INTO AN ORDER FORM, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPTED THE TERMS OF THIS AGREEMENT WITHOUT MODIFICATION AND AGREE TO BE BOUND BY IT. YOU FURTHER REPRESENT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR), AND IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS THE COMPANY YOU WORK FOR, YOU FURTHER REPRESENT THAT YOU ARE AN EMPLOYEE OR AGENT OF SUCH ENTITY AND HAVE THE LEGAL AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES AS APPLICABLE, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. SOJO RESERVES THE RIGHT TO MODIFY THIS AGREEMENT AT ANY TIME AND FOR ANY REASON, AS SET FORTH IN SECTION 13.1 HEREOF. IF CUSTOMER DOES NOT AGREE TO THE AGREEMENT AS MODIFIED, CUSTOMER MUST DISCONTINUE ITS USE OF THE PRODUCTS AND SERVICES.

NOW, THEREFORE, for good and valid consideration, and intending to be legally bound, Sojo and Customer do hereby agree as follows:

DEFINITIONS: As used in this Agreement, the following terms shall have the meanings set forth below:
1. “Effective Date” means the date that Customer accepts this Agreement.
2. “Order Form” means an ordering document or online order, including but not limited to a Sojo quote or a Customer purchase order, work order or similar document, specifying the Products and/or Services to be provided by Sojo, in each case that is signed by both Parties.
3. “Products” means those Sojo proprietary web-based and/or mobile platforms and tools licensed by Customer as set forth in one or more Order Forms, as well as any updates, modifications, customizations or improvements thereto as Sojo may provide to Customer from time to time, including but not limited to the Sojo Shield Track, Integrate, Price, Plan, and Utilize modules.
4. “Services” means any consulting, development, implementation, training or other professional services provided by Sojo to Customer, as may be set forth in one or more Order Forms.
5. “User(s)” means Customer’s employees, independent contractors, and/or agents who are authorized by Customer to use any of the Products or Services.
LICENSE; SERVICES; CUSTOMER RESPONSIBILITIES
1. LICENSE: Sojo hereby grants Customer a limited, non-transferable and non-sublicensable (except in connection with a permitted assignment of the rights granted under this Agreement), revocable (in connection with termination of this Agreement and/or the relevant Order Form(s)), worldwide license, during the license term(s) set forth in the relevant Order Form(s) (or if not so set forth, for the term stated in the main body of this Agreement), to use the Products and any deliverables created by Sojo in the course of its performance of any Services for Customer, solely for Customer’s internal business purposes and solely in accordance with the terms of this Agreement and the relevant Order Form(s). If an Order Form specifies a maximum number of Users, seats, or licenses, then Customer may not use the Products in a manner that exceeds the number of such Users, seats, or licenses. If an Order Form specifies limitations on the types or categories of users eligible to use a seat or license (e.g. external (non-employee) users), then Customer may not allow any other type or category of user to use such seats or licenses. From time to time, upon Sojo’s reasonable written request, Customer shall certify in writing as to its compliance with the terms of this Agreement and any Order Form(s), including, without limitation, Customer’s compliance with any restrictions on Customer’s maximum number of Users, seats, or licenses or types or categories of users who have used such seats or licenses. Sojo shall make the Services available to Customer pursuant to this Agreement and the applicable Order Form(s).
2. CUSTOMER RESPONSIBILITIES: Customer shall (i) be solely responsible for the provision of the necessary resources, as set forth in the Order Form, for Sojo to perform its Services or to provide its Products, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services or the Products, and notify Sojo in writing promptly of any such unauthorized access or use, and (iii) use the Services or the Products only for Customer’s business purposes and not for service bureau use or time-sharing. Customer shall not (or permit any other person to) (A) sell, resell, license, rent or lease the Services or any of the Products, (B) use the Products or Services to transmit infringing, libelous, or otherwise unlawful or tortious material, or to violate third-party privacy rights, or (C) interfere with or disrupt the integrity or performance of the Services, any of the Products, or any third-party data contained therein.
3. SUBCONTRACTORS: Customer hereby understands and agrees that Sojo may utilize subcontractors to perform and deliver the Products and Services, provided that Sojo shall at all times remain responsible for such subcontractors to the same nature and extent that Sojo is responsible to Customer for its own performance of the Products and Services hereunder.
CUSTOMER MATERIALS; THIRD PARTIES
1. LICENSE TO CUSTOMER MATERIALS: By executing this Agreement Customer hereby grants to Sojo a royalty-free, worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable (except to authorized contractors and resellers as Sojo deems necessary to provide the Products and Services), limited license to use, reproduce, modify, transmit, distribute and display Customer’s content and materials (including but not limited to information regarding Users) (collectively, the “Customer Materials”) in connection with the provision of the Services and the Products. Except for the limited rights expressly granted in this Agreement, Customer reserves all right, title and interest (including all intellectual property rights) in and to the Customer Customer, on behalf of itself and its Users, hereby acknowledges and agrees that its (and its Users’) use of the Product(s), and Sojo’s use of the Customer Materials, shall at all times be subject to Sojo’s www.sojoindustries.com/privacy. Customer shall be solely responsible for obtaining all consents and permissions necessary to collect and use Customer Materials of Customer’s employees whose personal information is processed by the Products and Services as described in this paragraph, and Customer shall provide evidence of such consents and permissions to Sojo upon request.
2. INAPPROPRIATE CONTENT AND COMMUNICATIONS: Sojo may, in its sole discretion and without notice, remove or disable access to content, materials and/or data from the Products, or suspend the ability of individual Users to access the Products, if Sojo believes in good faith that such content, materials and/or data, or the activities of the affected Users, as applicable, (i) are or contain viruses or other malicious code, (ii) are illegal, inappropriate, or otherwise objectionable, and/or (iii) are infringing or violate applicable law or third-party rights, or threaten legal, operational or reputational harm or damage to Sojo, its software or systems, or Sojo’s customers, or to third parties.
3. USAGE DATA: Notwithstanding anything in this Agreement to the contrary, Sojo may create, retain, use, and generate inferences from generic, aggregated or statistical data, analytics, and metrics which are derived from usage of the Products (and/or Non-Sojo Applications with which the Products are integrated) and do not identify Customer in order to provide, optimize, and improve its Products and Services for the benefit of Sojo and its customers, including, but not limited to, developing, training, and improving machine learning and artificial intelligence technologies.
THIRD-PARTY INTEGRATIONS
1. NON-SOJO APPLICATIONS: The Products may integrate with platforms, services, systems, online applications and/or websites developed, provided and operated by Customer and/or a third party, and not by Sojo (collectively, “Non-Sojo Applications”). Customer expressly acknowledges and agrees and agrees that Sojo does not control, and has no responsibility or liability whatsoever arising from, any Non-Sojo Applications or data processed by Non-Sojo Applications or any changes to the foregoing, and does not evaluate, and is not responsible for, the privacy or information security practices of any Non-Sojo Application or its provider or licensor. All rights in and to the Non-Sojo Applications are owned by the respective providers and/or their licensors, and additional terms, conditions and fees (including integration fees as may be outlined in an applicable Order Form(s)) may apply to Customer’s use of and/or integration with the Non-Sojo Applications. Customer represents and warrants that it will adhere to any terms and conditions applicable to such Non-Sojo Applications.
2. THIRD-PARTY FEES: Customer is solely responsible for paying any associated third-party fees, including any fees due for Customer’s use of Non-Sojo Applications. Without limiting the generality of the foregoing, Customer acknowledges and agrees that Customer will be responsible for all (i) integration, implementation, certification, service, upgrade, transaction, or other fees charged to Sojo by a Non-Sojo Application provider in order to establish or maintain an integration between the Products and a Non-Sojo Application that was set forth in an Order Form; (ii) messaging costs from a SMS / email Non-Sojo Application provider, and (iii) payment tokenization costs (collectively, “Non-Sojo Application Fees”). All such Non-Sojo Application Fees will be passed through to Customer by Sojo at cost, without markup.
3. IMPACT ON INTEGRATIONS: Customer further acknowledges and agrees that changes to or replacement of a Non-Sojo Application by Customer may impact ongoing integrations with the Products and/or other Non-Sojo Applications used by Customer, and Customer further acknowledges and agrees that Customer is responsible for securing all rights and permissions necessary to integrate all Non-Sojo Applications that Customer wishes to use with the Products.
FEES AND PAYMENT
1. CUSTOMER FEES: Sojo’s fees shall be specified in the applicable Order Form(s). Except as otherwise specified in an Order Form, (i) fees are due net 30 days following the date of the applicable invoice, and are payable in United States dollars, and (ii) payment obligations are non-cancelable and fees paid are non-refundable. All Services and Products are accepted upon delivery by Sojo. Sojo may increase prices set forth in the Order Form at the beginning of each renewal term.
2. INVOICING AND PAYMENT: Fees shall be calculated in accordance with Section 5.1, above, and, unless otherwise stated in the Order Form, shall be paid by Customer to Sojo on a monthly basis.
3. SUSPENSION OF SERVICE: If any charge owing by Customer is thirty (30) days or more overdue, Sojo may, without limiting its other rights and remedies, suspend Services or disallow the use of the Products until such amounts are paid in full. Customer will be responsible for any reasonable fees, legal or otherwise, incurred by Sojo in connection with the collection of outstanding accounts receivable.
4. TAXES: Unless otherwise stated, Sojo’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its purchases of Services or Products hereunder. If Sojo has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Sojo with a valid tax exemption certificate authorized by the appropriate taxing authority. However, Sojo is solely responsible for Taxes assessable against it based on its income, property and employees.
5. AUDIT: Customer agrees to keep accurate and complete records from which Customer’s compliance with this Agreement, including without limitation all of the sums payable to Sojo, can be readily determined, and will make available all relevant information and copies of details or reporting related to such records for Sojo’s (or its authorized agent’s) inspection upon Sojo’s reasonable request.
PROPRIETARY RIGHTS
1. RESERVATION OF RIGHTS: Subject to the limited rights expressly granted hereunder, Sojo reserves all rights, title and interest in and to (i) the Services and Products, (ii) all related software and hardware, applications, integrations with Non-Sojo Applications, modules, code (including source and object code), and instructions, processing systems and techniques, inputs and outputs, methodologies and technical information, user documentation and training materials, (iii) all deliverables created by Sojo in connection with any Services provided to Customer, and (iv) any customizations, improvements, modifications or derivative works of or to the foregoing, including all related intellectual property rights (collectively, the “Sojo Intellectual Property”). No rights are granted to Customer hereunder and/or by the receipt of Services or any Product, other than those expressly set forth herein.
2. SUGGESTIONS: From time to time Customer may provide suggestions, enhancement or modification requests, recommendations or other feedback relating to the operation of the Services or Products (the “Suggestions”). Sojo owns all right, title and interest in any Suggestions, and Customer hereby assigns and transfers to Sojo all its right, title and interest (including all intellectual property rights) in and to the Suggestions.
3. RESTRICTIONS: Customer shall not (i) permit any third party to access the Services or any Product except as permitted herein or in an Order Form, (ii) create derivative works based on the Sojo Intellectual Property or merge it with any other products or services, (iii) copy, frame or mirror any part or content of the Sojo Intellectual Property, (iv) reverse engineer the Sojo Intellectual Property, or (v) access the Services, the Product or the Sojo Intellectual Property in order to (a) build a competitive product or service or for any benchmarking purposes, (b) copy any features, functions or graphics of the Sojo Intellectual Property, or (c) use the Services, the Products or the Sojo Intellectual Property other than as set forth in Section 2.
CONFIDENTIALITY
1. CONFIDENTIAL INFORMATION: As used herein, “Confidential Information” means all information disclosed by a Party (“Disclosing Party“) to the other Party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including business research, procedures and costs, financial data, distribution methods, marketing data, methods, plans and efforts, the identities and terms of engagements with actual and prospective suppliers or customers, personnel information, and information received from third parties subject to obligations of non-disclosure or non-use. Confidential Information of Sojo shall include the Sojo Intellectual Property and the terms and conditions of this Agreement and all Order Forms. Notwithstanding anything in this Section 7.1 to the contrary, Confidential Information shall not include any information that the Receiving Party can demonstrate by contemporaneous written evidence (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of, or access or reference to, the Disclosing Party’s Confidential Information.
2. PROTECTION OF CONFIDENTIAL INFORMATION: Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The provisions of this Section 7 apply in addition to, and not in lieu of, any other confidentiality or non-disclosure agreement between the Parties.
3. COMPELLED DISCLOSURE: The Receiving Party may disclose Confidential Information of the Disclosing Party if disclosure is reasonably necessary in the opinion of Receiving Party to (i) comply with legal or administrative process (including to, civil and criminal subpoenas, court orders or other compulsory disclosures); or (ii) enforce this Agreement. Disclosure is permitted pursuant to this Section 7.3 provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
SECURITY
1. INFORMATION SECURITY: Without limiting Sojo’s obligations of confidentiality as further described herein, Sojo shall be responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that are designed to: (i) ensure the security and confidentiality of the Customer Materials; (ii) protect against any anticipated threats or hazards to the security or integrity of the Customer Materials; (iii) protect against unauthorized disclosure, access to, or use of the Customer Materials; and (iv) ensure the proper disposal of the Customer Materials.
2. SECURITY BREACHES: Sojo shall notify Customer in writing promptly after Sojo confirms any unauthorized access to, or destruction, use or disclosure of Customer Materials (each such event, a “Security Breach”). Such written notification shall include, at a minimum, and to the extent known to Sojo at the time such notification is made: (i) a description of the nature of the Security Breach; (ii) a description of the likely consequences of the Security Breach; and (iii) a description of the measures taken or proposed to be taken by Sojo to address the Security Breach. Following the initial notification described in this Section 8.2, upon Customer’s reasonable written request, Sojo shall promptly provide Customer with any further information regarding the Security Breach that is necessary to enable Customer to meet the notification obligations and other obligations of Customer under applicable laws and regulations. Thereafter, Sojo shall reasonably cooperate with and reasonably assist Customer in connection with any investigation, response and other activities that Customer is required to conduct with respect to such Security Breach pursuant to applicable laws or regulations.
WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
1. MUTUAL WARRANTIES: Each Party represents and warrants that (i) it has been duly authorized under applicable corporate laws to enter into this Agreement, and (ii) it will comply with all applicable laws in its performance hereunder.
2. SOJO PERFORMANCE WARRANTY: Sojo warrants that (i) it shall perform all Services in a professional, workmanlike manner; and (ii) all Products shall conform materially to the Sojo Shield Track and Trace User Guide (as it may be updated and modified by Sojo from time to time). As Sojo’s sole liability and Customer’s sole and exclusive remedy for any breach of the foregoing warranty, Sojo shall re-perform any defective Services at no additional cost and/or use diligent efforts to remediate any material non-conformities in the Products within a reasonable time. Notwithstanding the foregoing, Sojo shall not be responsible for any defects or non-conformities that arise from (a) Customer’s misuse of Products or Services or breach of this agreement, (b) any modification of Products or Services by a person other than Sojo or its authorized subcontractors, (c) Customer’s failure to maintain minimum technology standards for use of the Products and Services as specified by Sojo from time to time, (d) the Customer Materials or Customer’s systems, applications, or websites, or (e) an event of Force Majeure as provided in Section 13.10 below.
3. CUSTOMER MATERIALS WARRANTY: Customer warrants that (i) Customer’s use of the Products and Services, and Customer’s provision of any Customer Materials to Sojo hereunder in connection therewith, is in compliance with Customer’s privacy policies and all applicable legal and regulatory requirements; (ii) the Customer Materials do not infringe upon or violate the rights of any third party; and (iii) Customer has obtained all permissions and consents from Users and as required for Customer’s usage of the Products, and Customer will provide Sojo with evidence of any required permission or consent upon request.
4. DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED HEREIN AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOJO EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SOJO APPLICATION WILL BE FREE FROM ERRORS, DELAYS, INTERRUPTIONS, VIRUSES OR MALICIOUS CODE OR WILL ALWAYS BE AVAILABLE, THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE SERVICES OR PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS OR WILL IMPROVE CUSTOMER’S FINANCIAL RESULTS.
INDEMNIFICATION
1. INDEMNIFICATION BY SOJO: Sojo shall indemnify, defend, and hold harmless Customer and its employees, agents, and representatives, from and against any claim, demand, suit, or proceeding (each, a “Claim“) made or brought against Customer by a third party, and any out-of-pocket costs, damages, fines, penalties, expenses, and fees (including reasonable attorneys’ fees) (collectively, “Costs”) incurred by Customer in connection therewith, alleging that the Products or Services, as used in accordance with this Agreement, infringe or misappropriate a United States patent, copyright, trademark, or other intellectual property right of a third party. Notwithstanding the foregoing, Sojo shall not be responsible to the extent that any alleged infringement or misappropriation arises from (i) the Customer Materials or Customer’s systems, applications, or websites, (ii) alterations made by Customer or third parties to Products or Services without Sojo’s written authorization, (iii) any specifications, instructions or other information provided by Customer or its Users, (iv) breach of this Agreement or improper or unauthorized use of the Products or Services by Customer or any third party obtaining access through Customer, or (v) combination of the Products or Services with products or services that are not provided by Sojo. Should any Products or Services become, or in Sojo’s opinion likely to become, the subject of a claim of infringement or misappropriation, Sojo shall, at its option and expense either: (a) procure for Customer the right to continue to use the Products or Services, or (b) replace or modify the infringing Products or Services to make their use non-infringing without loss of substantial functionality. Notwithstanding the foregoing, if Sojo, in its sole discretion, determines that neither of the said options is available to it on commercially reasonable terms, Sojo, at its option, may terminate the provision or Customer’s use of the allegedly infringing Products or Services and equitably reduce any ongoing fees accordingly.
2. INDEMNIFICATION BY CUSTOMER: Customer shall indemnify, defend, and hold harmless Sojo and its employees, agents, and representatives, from and against (i) any Costs incurred by Sojo in connection with any material breach by Customer of any provision of this Agreement, and/or (ii) any Claim made or brought against Sojo by a third party, and any Costs incurred by Sojo in connection therewith, to the extent such Claim arises from or relates to (i) Customer’s use or misuse of the Product(s) exceeding the scope of the license rights granted in Section 2.1, above, or (ii) the Customer Materials, and/or Customer’s products, services, systems, applications, or websites.
3. INDEMNIFICATION PROCEDURE: The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, (ii) reasonably cooperate in the defense or settlement of any such claim, demand or action, at the expense of the indemnifying Party; and (iii) give the indemnifying Party sole control over the defense or settlement of any such claim; provided, however, the indemnifying Party shall not enter into any settlement without the indemnified Party’s express consent that (a) assigns, imparts or imputes fault or responsibility to the indemnified Party or its affiliates or other indemnified persons, (b) includes a consent to an injunction or similar relief or otherwise imposes any obligation binding upon the indemnified Party or its affiliates or other indemnified persons or (c) provides for relief other than monetary damages that the indemnifying Party solely bears.
LIMITATION OF LIABILITY
1. LIMITATION OF LIABILITY: EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 11.3 AND 11.4, BELOW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL SOJO’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID TO SOJO BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT.
2. EXCLUSION OF CERTAIN DAMAGES: EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, BELOW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL SOJO HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, DATA OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY IN THIS SECTION 11 SHALL BE ENFORCEABLE EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
3. EXCLUSIONS: NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN DAMAGES SET FORTH IN SECTIONS 11.2 AND 11.3, ABOVE, SHALL NOT APPLY TO ANY LIABILITY ARISING FROM (i) ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (ii) EACH PARTY’S INDEMNIFICATION OBLIGATIONS, (iii) ANY INTENTIONAL BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, (iv) CUSTOMER’S BREACH OF SECTION 2.2 OR 6.3, OR ANY VIOLATION OF SOJO’S INTELLECTUAL PROPERTY RIGHTS, OR (v) CUSTOMER’S OBLIGATION TO PAY AMOUNTS REQUIRED BY THE AGREEMENT.
4. SPECIAL LIMITATION OF LIABILITY: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL SOJO’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO SECTION 8 OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR CONSUMER NOTIFICATIONS AND CREDIT MONITORING, REASONABLE LEGAL FEES, AND LIABILITY TO THIRD PARTIES (INCLUDING REGULATORY FINES OR PENALTIES)), WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED A TOTAL OF $250,000. IF SUCH DAMAGES INCLUDE THE COST OF CONSUMER NOTIFICATION AND/OR CREDIT MONITORING, SOJO SHALL BE LIABLE FOR SUCH DAMAGES (SUBJECT TO THE FOREGOING LIMITATION) ONLY IF SUCH NOTICE OR CREDIT MONITORING IS REQUIRED BY APPLICABLE LAW OR REGULATION. FOR THE AVOIDANCE OF DOUBT, THIS SECTION 11.4 ESTABLISHES SOJO’S MAXIMUM AGGREGATE LIABILITY IN THE EVENT OF A SECURITY BREACH.
TERM AND TERMINATION
1. TERM OF LICENSE: The term of the license rights granted to Customer in this Agreement shall commence on the Effective Date and continue for the duration set forth in the applicable Order Form(s). Thereafter, this Agreement shall automatically renew for consecutive one (1) year terms unless either Party provides the other Party with written notice of termination no less than ninety (90) days prior to the expiration of the then current term.
2. TERMINATION FOR CAUSE: Either Party may terminate this Agreement and all Order Forms (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3. EFFECT OF TERMINATION: Upon the termination of this Agreement, all licenses and Services hereunder shall terminate, except as otherwise set forth in Section 12.4. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Sojo for the period prior to the effective date of termination. Notwithstanding anything to the contrary, Customer agrees that Sojo may permanently delete and/or destroy all Customer Materials and other data of Customer upon the earlier of (i) five (5) years following the date of Sojo’s receipt of such information from Customer, or (ii) termination of this Agreement by Customer for any reason.
4. SURVIVAL: Sections 3.3, 5, 6, 7, 9.3, 9.4, 10, 11, 12, and 13 shall survive any termination or expiration of this Agreement, along with any provisions of this Agreement concerning ownership rights and any other provisions of this Agreement which, by their nature, are intended to survive.
GENERAL PROVISIONS
1. ENTIRE AGREEMENT; MODIFICATIONS: Except as herein expressly provided, notwithstanding anything to the contrary in this Agreement or elsewhere, this Agreement, including any Order Forms entered into by the parties, constitutes the entire understanding between the parties with respect to the subject matter hereof and shall supersede all previous and/or contemporaneous negotiations, commitments, understandings and agreements. Sojo reserves the right to modify this Agreement for any reason. Customer should look at this Agreement regularly and the “Last Updated” date at the top of this Agreement. Sojo will use reasonable efforts to give Customer notice of modifications, such as posting notice of modifications on this web page. By continuing to use the Products and/or Services after Sojo makes these modifications, Customer agrees that it will be subject to the Agreement as modified. Except as otherwise expressly provided in this Section 13.1, no modifications to the Agreement shall be valid unless made in writing and signed by a duly authorized representative of Customer and by Sojo, and neither the acquiescence in any performance at variance to the provisions of this Agreement nor the failure to exercise any right or enforce any obligation hereunder shall be deemed a modification of this Agreement.
2. RELATIONSHIP OF THE PARTIES: The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
3. NO THIRD-PARTY BENEFICIARIES: There are no third-party beneficiaries to this Agreement.
4. NOTICES: Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon receipt. All notices to Sojo hereunder shall be addressed to Sojo Notices mail to 220 Rittenhouse Circle, Bristol, PA 19007 and via email to notices@sojoindustries.com and notices@sojoshield.com. All notices to Customer shall be addressed to the authorized representative signing below. Each Party may change its representative hereunder upon notice in accordance with this Section.
5. NO WAIVER: No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.
6. SEVERABILITY: If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
7. ASSIGNMENT: Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld); provided, however, that either Party may so assign, without consent, to any affiliated entity or in connection with a change of control (including through the issuance of securities), merger, acquisition, corporate reorganization, or sale of substantially all of the assets or business of the assigning Party. Any assignment in contravention of this Section shall be null and void. Subject to the foregoing, the rights granted in this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
8. GOVERNING LAW AND VENUE: This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the Commonwealth of Pennsylvania, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in Philadelphia, Pennsylvania will have exclusive jurisdiction over any dispute relating to this Agreement, and each Party consents to the exclusive jurisdiction of those courts.
9. COUNTERPARTS: This Agreement may be executed electronically and in counterparts, each of which shall be deemed to be an original and all such counterparts shall together constitute one and the same instrument.
10. NO DRAFTSMAN’S PRESUMPTION: The Parties acknowledge that each Party had the opportunity to engage counsel in connection with drafting, reviewing and negotiating this Agreement and that, accordingly, no draftsman’s presumption or similar rule of construction shall be applied to construe this Agreement in favor of or against either Party.
11. CONFLICTS: In the event of any conflict between the terms set forth in this Sojo Shield Agreement, an addenda or exhibit, or an Order Form, the order of precedence shall be as follows (from most precedential to least precedential): (1) the Order Form with respect to the subject matter in conflict, but solely to the extent the Order Form expressly references the provision of the Agreement to be overridden, (2) the Sojo Shield Agreement, and (3) the terms of any applicable addenda or exhibit.
12. FORCE MAJEURE: Neither Party shall be liable to the other for any loss or damage attributable to, and neither Party shall be deemed to be in default hereunder as a result of, any failure or delay in performance caused by Force Majeure. Both Parties shall use all reasonable efforts to minimize the consequences of Force Majeure. As used in this Section, the term “Force Majeure” means strike, lockout, earthquake, hurricane, flood, fire, or other acts of God or nature, war, rebellion, civil disorders, laws, regulations, acts of civil or military authorities (including the denial or cancellation of any necessary license), epidemics, pandemics, and other public health emergencies, criminal or malicious acts of third parties, acts of third parties as provided in Section 4 above, unavailability of materials, carriers or communications facilities, Internet and network disruptions, and any other causes beyond the reasonable control of the Party whose performance is affected. “Force Majeure” shall not include economic hardship, changes in market conditions, and/or insufficiency of funds.
13. ATTRIBUTION: Each Party hereby grants to the other Party a royalty free, non-exclusive license during the term of this Agreement to use its trademarks, service marks and other proprietary indicia of the other Party to establish a Customer or vendor (as applicable) list on its website and in its marketing materials. Each Party will comply with the other Party’s reasonable written requests as to the usage, display and presentation of such trademarks, service marks or other proprietary indicia. Except as expressly provided above, neither Party may use the other Party’s trade or service marks or reference the other Party in any publicity or marketing materials without such other Party’s prior written consent.