TERMS OF SERVICE
Last Updated: March 05, 2023
These Terms of Service are effective on March 05, 2023, if you created your account or accepted or otherwise agreed to them on or after March 05, 2023.
These Terms of Service are effective on April 05, 2023, if you created your account or accepted or otherwise agreed to a previous version of these Terms of Service prior to March 05, 2023.
These Terms of Service are effective on March 05, 2023, if you created your account or accepted or otherwise agreed to them on or after March 05, 2023.
These Terms of Service are effective on April 05, 2023, if you created your account or accepted or otherwise agreed to a previous version of these Terms of Service prior to March 05, 2023.
PLEASE READ THE FOLLOWING TERMS OF SERVICE AGREEMENT CAREFULLY. BY ACCESSING GENIUSREFERRALS.COM OR USING THE SERVICES THEREIN, YOU AGREE TO BE BOUND BY THE TERMS AND ALL TERMS INCORPORATED HEREIN BY REFERENCE. IT IS THE RESPONSIBILITY OF YOU, THE CUSTOMER, PROSPECTIVE CUSTOMER, OR USER, TO READ THE TERMS OF SERVICE BEFORE ACCESSING OR USING THE SITE OR SERVICES. IF YOU DO NOT EXPRESSLY AGREE TO AL OF THE TERMS AND CONDITIONS, PLEASE DO NOT ACCESS OR USE THE SITE OR SERVICES. THIS TERMS OF SERVICE AGREEMENT WILL GOVERN YOUR RIGHTS AND PAYMENT OBLIGATIONS.
The following Terms of Service Agreement is a binding agreement that shall govern the relationship with our customers, prospective customers, users, and others (collectively the “Customer(s)”) that may purchase services, interact, or interface with HLA Solutions Group, LLC d/b/a Genius Referrals ("Genius Referrals"), a Florida limited liability company with its principal office at 37 North Orange Avenue, Suite 500, Orlando, FL 32801 ("Genius Referrals") in association with the use of the website, which includes geniusreferrals.com, and its Services (defined below). Genius Referrals and Customer may be referred to herein collectively as the "Parties" or individually as a "Party."
WHEREAS, Genius Referrals is in the business of providing referral marketing programs; and
WHEREAS, Customer desires to engage Genius Referrals to provide referral program services in accordance with the terms of this Terms of Service Agreement and any "Service Addendum(s)" hereto executed in writing by both parties (individually and collectively the "Agreement")
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
(a) "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Genius Referrals in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(c) "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(d) "Documentation" means Genius Referrals' user manuals, handbooks, and guides relating to the Services provided by Genius Referrals to Customer either electronically or in hard copy form relating to the Services available at geniusreferrals.com.
(e) "Genius Referrals IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Genius Referrals IP includes Aggregated Statistics and any information, data, or other content derived from Genius Referrals' monitoring of Customer's access to or use of the Services, but does not include Customer Data.
(f) "Services". Genius Referrals is a cloud-hosted, automated, end-to-end referral marketing platform. The referral program service enables Customers to configure, manage and monitor referral programs for one or multiple systems (websites or applications). Through the Genius Referrals portal, Customer is able to: create referral marketing campaigns with multiples restrictions and tiers; create widgets packages to allow Customers' end-users to publish default content on social networks and other websites; customize templates for the referral program to be installed on the Customer's systems; monitor real-time analytics; manage advocates, bonuses and redemptions; adjust the referral programs as needed and read documentation (the "Services").
(g) "Third-Party Products" means any third-party products or services utilized by Genius Referrals in the provision of Services to Customer.
(h) "Genius Referrals Acceptable Use Policy" means certain terms relating to the use of the Services, the current version of which is available at https://geniusreferrals.com/legal/aup.
(i) "Genius Referrals Data Protection Addendum" means the personal data processing-related terms for the Services, the current version of which is available at https://geniusreferrals.com/legal/data-protection-addendum.
(j) "Genius Referrals Security Overview" means the security-related terms for the Services, the current version of which is available at https://geniusreferrals.com/legal/security-overview.
(k) "Partners Referral Program" means the referral program offered by Genius Referrals that allows Referrers to refer potential clients and partners, earning a compelling 30% recurring commission for the life of each referral, as further described in the Genius Referrals Partners Referral Program Terms and Conditions available at https://geniusreferrals.com/legal/genius-referrals-partners-referral-program-terms-and-conditions.
(a) "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Genius Referrals in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(c) "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(d) "Documentation" means Genius Referrals' user manuals, handbooks, and guides relating to the Services provided by Genius Referrals to Customer either electronically or in hard copy form relating to the Services available at geniusreferrals.com.
(e) "Genius Referrals IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Genius Referrals IP includes Aggregated Statistics and any information, data, or other content derived from Genius Referrals' monitoring of Customer's access to or use of the Services, but does not include Customer Data.
(f) "Services". Genius Referrals is a cloud-hosted, automated, end-to-end referral marketing platform. The referral program service enables Customers to configure, manage and monitor referral programs for one or multiple systems (websites or applications). Through the Genius Referrals portal, Customer is able to: create referral marketing campaigns with multiples restrictions and tiers; create widgets packages to allow Customers' end-users to publish default content on social networks and other websites; customize templates for the referral program to be installed on the Customer's systems; monitor real-time analytics; manage advocates, bonuses and redemptions; adjust the referral programs as needed and read documentation (the "Services").
(g) "Third-Party Products" means any third-party products or services utilized by Genius Referrals in the provision of Services to Customer.
(h) "Genius Referrals Acceptable Use Policy" means certain terms relating to the use of the Services, the current version of which is available at https://geniusreferrals.com/legal/aup.
(i) "Genius Referrals Data Protection Addendum" means the personal data processing-related terms for the Services, the current version of which is available at https://geniusreferrals.com/legal/data-protection-addendum.
(j) "Genius Referrals Security Overview" means the security-related terms for the Services, the current version of which is available at https://geniusreferrals.com/legal/security-overview.
(k) "Partners Referral Program" means the referral program offered by Genius Referrals that allows Referrers to refer potential clients and partners, earning a compelling 30% recurring commission for the life of each referral, as further described in the Genius Referrals Partners Referral Program Terms and Conditions available at https://geniusreferrals.com/legal/genius-referrals-partners-referral-program-terms-and-conditions.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all terms and conditions of this Agreement, Genius Referrals hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's use. Genius Referrals shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Genius Referrals hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement and the Genius Referrals Acceptable Use Policy.
(d) Reservation of Rights. Genius Referrals reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Genius Referrals IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Genius Referrals may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Genius Referrals reasonably determines that (A) there is a threat or attack on any of the Genius Referrals IP; (B) Customer's or any Authorized User's use of the Genius Referrals IP disrupts or poses a security risk to the Genius Referrals IP or to any other customer or vendor of Genius Referrals; (C) Customer, or any Authorized User, is using the Genius Referrals IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Genius Referrals's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Genius Referrals has suspended or terminated Genius Referrals's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Genius Referrals shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Genius Referrals shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Genius Referrals will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Genius Referrals may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Genius Referrals and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Genius Referrals. Customer acknowledges that Genius Referrals may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Genius Referrals may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
(a) Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all terms and conditions of this Agreement, Genius Referrals hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's use. Genius Referrals shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Genius Referrals hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement and the Genius Referrals Acceptable Use Policy.
(d) Reservation of Rights. Genius Referrals reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Genius Referrals IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Genius Referrals may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Genius Referrals reasonably determines that (A) there is a threat or attack on any of the Genius Referrals IP; (B) Customer's or any Authorized User's use of the Genius Referrals IP disrupts or poses a security risk to the Genius Referrals IP or to any other customer or vendor of Genius Referrals; (C) Customer, or any Authorized User, is using the Genius Referrals IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Genius Referrals's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Genius Referrals has suspended or terminated Genius Referrals's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Genius Referrals shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Genius Referrals shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Genius Referrals will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Genius Referrals may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Genius Referrals and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Genius Referrals. Customer acknowledges that Genius Referrals may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Genius Referrals may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
(b) Service Account. Customer use of the Services is subject to Customer creation and Genius Referrals approval of a Genius Referrals organization account (an "Account"). To create an Account, Customer must sign up on www.GeniusReferrals.com.
(c) Third-Party Products. Genius Referrals utilizes Third-Party Products in the provision of Services to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. Customer If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer must not utilize such Third-Party Products.
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
(b) Service Account. Customer use of the Services is subject to Customer creation and Genius Referrals approval of a Genius Referrals organization account (an "Account"). To create an Account, Customer must sign up on www.GeniusReferrals.com.
(c) Third-Party Products. Genius Referrals utilizes Third-Party Products in the provision of Services to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. Customer If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer must not utilize such Third-Party Products.
4. Service Levels.
(a) Platform Uptime. Genius Referrals platform will be available 99.7% of the time each calendar month, measured on a 7 x 24 basis (7 days a week, 24 hours a day). Scheduled maintenance will be performed within one or more intervals, not to exceed 60 minutes per month total. Genius Referrals will provide Customer with notice of any scheduled maintenance. Such notices will include the date of the maintenance and the start and stop time of the maintenance. Genius Referrals will ensure that all scheduled maintenance happens during off peak hours, as agreed upon by both parties.
(b) Platform Response Time. Genius Referrals guarantees that the monthly average for Customer's Referral Program response time will be less than three (3) seconds as measured by samples taken by Genius Referrals from controlled environments, representative of an average Customer's end-user in the United States. Response time is measured from the time a service request is received by Genius Referrals' servers to the time Genius Referrals' servers respond to the request. Response time as defined for this Service Level does not include third-party content (e.g. content on the Customer's web site) or infrastructure external to Genius Referrals' servers (e.g. the Customer's network or end-user devices). Customer retains the option of using a third-party service to validate the performance of Genius Referrals' response times.
(c) Incident Response And Repair Time. Genius Referrals manages incident response times on a graduated priority basis. Genius Referrals will maintain the organization and processes necessary to provide support and error-resolution services to Customer at no additional charge. Genius Referrals will provide support and error–resolution services on a 24 hour a day, 7 day a week basis via telephone from 9am to 6pm EST, and page service in all other hours, with a call back within one hour. Upon receipt of telephone or written notice from Customer specifying a problem, and upon receipt of such additional information as Genius Referrals may reasonably request, Genius Referrals will repair reproducible errors in accordance with the following time frames:
(a) Platform Uptime. Genius Referrals platform will be available 99.7% of the time each calendar month, measured on a 7 x 24 basis (7 days a week, 24 hours a day). Scheduled maintenance will be performed within one or more intervals, not to exceed 60 minutes per month total. Genius Referrals will provide Customer with notice of any scheduled maintenance. Such notices will include the date of the maintenance and the start and stop time of the maintenance. Genius Referrals will ensure that all scheduled maintenance happens during off peak hours, as agreed upon by both parties.
(b) Platform Response Time. Genius Referrals guarantees that the monthly average for Customer's Referral Program response time will be less than three (3) seconds as measured by samples taken by Genius Referrals from controlled environments, representative of an average Customer's end-user in the United States. Response time is measured from the time a service request is received by Genius Referrals' servers to the time Genius Referrals' servers respond to the request. Response time as defined for this Service Level does not include third-party content (e.g. content on the Customer's web site) or infrastructure external to Genius Referrals' servers (e.g. the Customer's network or end-user devices). Customer retains the option of using a third-party service to validate the performance of Genius Referrals' response times.
(c) Incident Response And Repair Time. Genius Referrals manages incident response times on a graduated priority basis. Genius Referrals will maintain the organization and processes necessary to provide support and error-resolution services to Customer at no additional charge. Genius Referrals will provide support and error–resolution services on a 24 hour a day, 7 day a week basis via telephone from 9am to 6pm EST, and page service in all other hours, with a call back within one hour. Upon receipt of telephone or written notice from Customer specifying a problem, and upon receipt of such additional information as Genius Referrals may reasonably request, Genius Referrals will repair reproducible errors in accordance with the following time frames:
(d) Exceptions. The following downtime minutes will be excluded from the measurement of compliance: (i) downtime minutes related to scheduled maintenance; (ii) downtime minutes related to any matter constituting force majeure pursuant to the Agreement; (iii) downtime minutes resulting from Customer noncompliance with the Agreement, including but not limited to any negligence, willful misconduct and (iv) downtime minutes resulting from data or transmission quality issues outside of Genius Referrals’ reasonable control.
(e) Remedy. If Genius Referrals fails to meet the Service Level as set forth in this section, then as Genius Referrals' sole obligation and Customer’s exclusive remedy, Customer shall be entitled to a 5% monthly credit based on fees actually paid by Customer to Supplier pursuant to the Agreement for each 60 minute period below the Service Level set forth in this section that Genius Referrals Service remains unavailable, provided that in no event shall service credits in any calendar month exceed 30% of the monthly fees for the given month. Any such credit shall be applied to fees owed by Customer to Genius Referrals in the following calendar month. Customer must request such service credit within 10 business days following the end of the calendar month in which the failure occurred.
(e) Remedy. If Genius Referrals fails to meet the Service Level as set forth in this section, then as Genius Referrals' sole obligation and Customer’s exclusive remedy, Customer shall be entitled to a 5% monthly credit based on fees actually paid by Customer to Supplier pursuant to the Agreement for each 60 minute period below the Service Level set forth in this section that Genius Referrals Service remains unavailable, provided that in no event shall service credits in any calendar month exceed 30% of the monthly fees for the given month. Any such credit shall be applied to fees owed by Customer to Genius Referrals in the following calendar month. Customer must request such service credit within 10 business days following the end of the calendar month in which the failure occurred.
5. Fees, Payment, and Plan.
(a) Fees and Plan. Customer agrees to pay Genius Referrals the monthly or annualized monthly fee ("Fees") specified in accordance with the plan selected by Customer during the registration process or as upgraded by Customer at a later date (the “Plan”). Customer must select a Plan with corresponding payment amounts when registering for an Account on GeniusReferrals.com. This Plan can be later upgraded by Customer if they wish to add additional advocates or features. The Plan may be downgraded by the Customer during the then current term. In the event Customer exceeds the threshold of advocates set forth in their Plan, Customer will pay a fixed price for each additional advocate added to their account. All applicable rates are available at https://geniusreferrals.com/referral-program-pricing.
(b) Payment. Customer shall make all payments due hereunder on or before the due date set forth in their account. If Customer fails to make any payment when due, without limiting Genius Referrals' other rights and remedies: (i) Genius Referrals may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Genius Referrals for all reasonable costs incurred by Genius Referrals in collecting any late payments or interest, including attorneys' fees, court costs, chargeback dispute costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, Genius Referrals may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
(c) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Genius Referrals' income.
(d) Recurring Payment Obligations and Discounted Annual Fees. Customer acknowledges that Customer's Plan has recurring payment features. Customer accepts responsibility for all recurring payment obligations prior to the termination of Customer's Plan. In the event Customer has selected a discounted annual Plan, Customer acknowledges that Customer is receiving a discount for committing to an annual Plan. As such, Customer shall not be entitled to a refund of any portion of the Fee in the event Customer attempts to terminate this Agreement prior to the conclusion of the then effective Term, unless such termination is properly made in accordance with the terms of the data protection addendum.
(a) Fees and Plan. Customer agrees to pay Genius Referrals the monthly or annualized monthly fee ("Fees") specified in accordance with the plan selected by Customer during the registration process or as upgraded by Customer at a later date (the “Plan”). Customer must select a Plan with corresponding payment amounts when registering for an Account on GeniusReferrals.com. This Plan can be later upgraded by Customer if they wish to add additional advocates or features. The Plan may be downgraded by the Customer during the then current term. In the event Customer exceeds the threshold of advocates set forth in their Plan, Customer will pay a fixed price for each additional advocate added to their account. All applicable rates are available at https://geniusreferrals.com/referral-program-pricing.
(b) Payment. Customer shall make all payments due hereunder on or before the due date set forth in their account. If Customer fails to make any payment when due, without limiting Genius Referrals' other rights and remedies: (i) Genius Referrals may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Genius Referrals for all reasonable costs incurred by Genius Referrals in collecting any late payments or interest, including attorneys' fees, court costs, chargeback dispute costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, Genius Referrals may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
(c) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Genius Referrals' income.
(d) Recurring Payment Obligations and Discounted Annual Fees. Customer acknowledges that Customer's Plan has recurring payment features. Customer accepts responsibility for all recurring payment obligations prior to the termination of Customer's Plan. In the event Customer has selected a discounted annual Plan, Customer acknowledges that Customer is receiving a discount for committing to an annual Plan. As such, Customer shall not be entitled to a refund of any portion of the Fee in the event Customer attempts to terminate this Agreement prior to the conclusion of the then effective Term, unless such termination is properly made in accordance with the terms of the data protection addendum.
6. Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date (as defined below) and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date (as defined below) and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback.
(a) Genius Referrals IP. Customer acknowledges that, as between Customer and Genius Referrals, Genius Referrals owns all right, title, and interest, including all intellectual property rights, in and to the Genius Referrals IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer IP. Genius Referrals acknowledges that, as between Genius Referrals and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer IP. Customer hereby grants to Genius Referrals, for the term of the Agreement, a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer IP and perform all acts with respect to the Customer Data as may be necessary for Genius Referrals to provide the Services to Customer.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Genius Referrals by mail, email, telephone, or otherwise, suggesting or recommending changes to the Genius Referrals IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Genius Referrals is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Genius Referrals on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Genius Referrals is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Genius Referrals is not required to use any Feedback.
(a) Genius Referrals IP. Customer acknowledges that, as between Customer and Genius Referrals, Genius Referrals owns all right, title, and interest, including all intellectual property rights, in and to the Genius Referrals IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer IP. Genius Referrals acknowledges that, as between Genius Referrals and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer IP. Customer hereby grants to Genius Referrals, for the term of the Agreement, a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer IP and perform all acts with respect to the Customer Data as may be necessary for Genius Referrals to provide the Services to Customer.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Genius Referrals by mail, email, telephone, or otherwise, suggesting or recommending changes to the Genius Referrals IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Genius Referrals is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Genius Referrals on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Genius Referrals is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Genius Referrals is not required to use any Feedback.
8. Limited Warranty and Warranty Disclaimer.
(a) Genius Referrals warrants that the Services will conform in all material respects to the service levels set forth in Section 4 when accessed and used in accordance with the Documentation. Genius Referrals does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Section 4 . The remedies set forth in Section 4 are Customer's sole remedies and Genius Referrals' sole liability under the limited warranty set forth in this Section 8(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND GENIUS REFERRALS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a),THE GENIUS REFERRALS IP IS PROVIDED "AS IS" AND GENIUS REFERRALS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. GENIUS REFERRALS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), GENIUS REFERRALS MAKES NO WARRANTY OF ANY KIND THAT THE GENIUS REFERRALS IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(a) Genius Referrals warrants that the Services will conform in all material respects to the service levels set forth in Section 4 when accessed and used in accordance with the Documentation. Genius Referrals does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Section 4 . The remedies set forth in Section 4 are Customer's sole remedies and Genius Referrals' sole liability under the limited warranty set forth in this Section 8(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND GENIUS REFERRALS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a),THE GENIUS REFERRALS IP IS PROVIDED "AS IS" AND GENIUS REFERRALS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. GENIUS REFERRALS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), GENIUS REFERRALS MAKES NO WARRANTY OF ANY KIND THAT THE GENIUS REFERRALS IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Indemnification.
(a) Genius Referrals Indemnification.
(i) Genius Referrals shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies Genius Referrals in writing of the claim, cooperates with Genius Referrals, and allows Genius Referrals sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit Genius Referrals, at Genius Referrals' sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Genius Referrals determines that neither alternative is reasonably available, Genius Referrals may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii)This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Genius Referrals or authorized by Genius Referrals in writing; (B) modifications to the Services not made by Genius Referrals; (C) Customer Data ; or (D) Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Genius Referrals's option, defend Genius Referrals from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Genius Referrals or authorized by Genius Referrals in writing; or (iv) modifications to the Services not made by Genius Referrals, provided that Customer may not settle any Third-Party Claim against Genius Referrals unless Genius Referrals consents to such settlement, and further provided that Genius Referrals will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND GENIUS REFERRALS' SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability. IN NO EVENT WILL GENIUS REFERRALS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER GENIUS REFERRALS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL GENIUS REFERRALS' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO GENIUS REFERRALS UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(a) Genius Referrals Indemnification.
(i) Genius Referrals shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies Genius Referrals in writing of the claim, cooperates with Genius Referrals, and allows Genius Referrals sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit Genius Referrals, at Genius Referrals' sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Genius Referrals determines that neither alternative is reasonably available, Genius Referrals may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii)This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Genius Referrals or authorized by Genius Referrals in writing; (B) modifications to the Services not made by Genius Referrals; (C) Customer Data ; or (D) Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Genius Referrals's option, defend Genius Referrals from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Genius Referrals or authorized by Genius Referrals in writing; or (iv) modifications to the Services not made by Genius Referrals, provided that Customer may not settle any Third-Party Claim against Genius Referrals unless Genius Referrals consents to such settlement, and further provided that Genius Referrals will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND GENIUS REFERRALS' SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability. IN NO EVENT WILL GENIUS REFERRALS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER GENIUS REFERRALS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL GENIUS REFERRALS' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO GENIUS REFERRALS UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term and Termination.
(a) Term. The initial term of this Agreement begins on the date the Customer enrolls in a Plan (the "Effective Date").
(i) If Customer selects a monthly Plan, unless terminated earlier pursuant to this Agreement's express provisions, the initial term will continue in effect until one month from the Effective Date (the "Initial Term"). The Agreement will automatically renew for successive one month terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal one month prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
(ii) If Customer selects an annual Plan, unless terminated earlier pursuant to this Agreement's express provisions, the initial term will continue in effect until one year from the Effective Date (the "Initial Term"). This Agreement will automatically renew for successive one year terms unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least one month prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Genius Referrals may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten days after Genius Referrals' delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or 6;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Genius Referrals IP and, without limiting Customer's obligations under 6, Customer shall delete, destroy, or return all copies of the Genius Referrals IP. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. This Section 10(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(a) Term. The initial term of this Agreement begins on the date the Customer enrolls in a Plan (the "Effective Date").
(i) If Customer selects a monthly Plan, unless terminated earlier pursuant to this Agreement's express provisions, the initial term will continue in effect until one month from the Effective Date (the "Initial Term"). The Agreement will automatically renew for successive one month terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal one month prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
(ii) If Customer selects an annual Plan, unless terminated earlier pursuant to this Agreement's express provisions, the initial term will continue in effect until one year from the Effective Date (the "Initial Term"). This Agreement will automatically renew for successive one year terms unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least one month prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Genius Referrals may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten days after Genius Referrals' delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or 6;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Genius Referrals IP and, without limiting Customer's obligations under 6, Customer shall delete, destroy, or return all copies of the Genius Referrals IP. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. This Section 10(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or customer service portal, or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Genius Referrals be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Genius Referrals's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, pandemics, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction.
(i) This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida.
(ii) Except for claims by Genius Referrals for payment, in the event of any disputes, controversies, or differences arising out of the Agreement or any breach thereof, including the interpretation or enforcement of statutory law or regulation pertaining to the Agreement ("Disputes"), the parties shall use their best efforts to settle the Dispute. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the Dispute cannot be resolved through negotiation, then at the request of either party in writing (the "Notice of Dispute"), the Dispute shall be submitted by either party to arbitration before the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules then in effect, utilizing a single arbitrator unless the parties agree otherwise. If the parties are unable to agree on an arbitrator within thirty (30) days of the filing of a demand for arbitration, the arbitrator shall be selected pursuant to the rules and procedures of the AAA. The arbitration will take place in Orlando, Florida and will apply the governing law of this Agreement. The decision of the arbitrator will be final and binding and judgment on the award may be entered in any court of competent jurisdiction. The arbitrator will state the reasoning for the decision(s), including findings of fact and law, and specify a prevailing party. The parties shall share the cost of the arbitrator and the arbitration proceedings, but the prevailing party in the arbitration shall be entitled to have its own arbitration costs and expenses (including reasonable attorneys fees) paid by the other party as part of final judgment. The parties agree that the arbitrator shall only have the power and authority to make awards and issue orders as expressly permitted herein and shall not, in any event, make any award that provides for punitive or exemplary damages.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Genius Referrals, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(j) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or customer service portal, or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Genius Referrals be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Genius Referrals's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, pandemics, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction.
(i) This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida.
(ii) Except for claims by Genius Referrals for payment, in the event of any disputes, controversies, or differences arising out of the Agreement or any breach thereof, including the interpretation or enforcement of statutory law or regulation pertaining to the Agreement ("Disputes"), the parties shall use their best efforts to settle the Dispute. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the Dispute cannot be resolved through negotiation, then at the request of either party in writing (the "Notice of Dispute"), the Dispute shall be submitted by either party to arbitration before the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules then in effect, utilizing a single arbitrator unless the parties agree otherwise. If the parties are unable to agree on an arbitrator within thirty (30) days of the filing of a demand for arbitration, the arbitrator shall be selected pursuant to the rules and procedures of the AAA. The arbitration will take place in Orlando, Florida and will apply the governing law of this Agreement. The decision of the arbitrator will be final and binding and judgment on the award may be entered in any court of competent jurisdiction. The arbitrator will state the reasoning for the decision(s), including findings of fact and law, and specify a prevailing party. The parties shall share the cost of the arbitrator and the arbitration proceedings, but the prevailing party in the arbitration shall be entitled to have its own arbitration costs and expenses (including reasonable attorneys fees) paid by the other party as part of final judgment. The parties agree that the arbitrator shall only have the power and authority to make awards and issue orders as expressly permitted herein and shall not, in any event, make any award that provides for punitive or exemplary damages.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Genius Referrals, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(j) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.