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By clicking the “Accept” box on the profile page for the Rez scheduling service (the “Profile Page”), the facility, coach or other fitness service provider set forth as the “customer” on the Profile Page (“Customer”) accepts and agrees to these Terms of Service (this “Agreement”), as of the date of Customer’s submission of the Profile Page.
Accordingly, Customer and Rez, LLC (“Rez”), intending to be legally bound, agree as follows:
1. Service Access. Rez grants to Customer, during the Term (defined below), the right for Customer to access and use the Rez scheduling service (the “Service”) and to make the Service available for access and use by parents, players and other users of the Service (“Users”) who have accepted Rez’s user terms of service (“User Terms”). In addition, Rez will provide Customer with technical and User support services in accordance with Rez’s standard practices.
2. Term. The term of this Agreement will start on Customer’s submission of the Profile Page and will continue until either party terminates this Agreement as set forth below. Customer may elect to terminate this Agreement at any time by providing notice to Rez through the Service. In such event, Customer’s access and use of the Service will continue through the date of Customer’s termination notice. In addition to any other available rights or remedies, either party elect to terminate this Agreement immediately upon notice to the other describing in reasonable detail a breach of this Agreement by the other party or upon the other party’s failure to continue to function as a going concern or to operate in the ordinary course of business, or upon the bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or other similar proceedings of the other party. Rez may terminate or suspend any individual User account or access to the Service in Rez’s reasonable discretion. Rez will have no obligation to retain any Customer Data (defined below) for more than thirty (30) days after termination of this Agreement. Customer will not be entitled, in any circumstances, to a refund of any fees paid.
3. Fees
3.1. Usage Fees. Customer will pay a booking fee, in the initial amount designated by Rez (whether set forth on the Profile Page, on Customer’s booking pages in the Service, or otherwise in writing), without setoff or deduction, for each booking of any service of Customer, however designated (class, session, etc.), through the Service, whether such fee is separately collected from or included in the charges of Customer to its Users.
3.2. Fee Payment. Rez will determine the mechanics for payment of the booking fees. Customer will require its payment processor, from the charges paid by Users, to pay to Rez the Customer usage fees to which Rez may be entitled pursuant to this Agreement. Alternatively, if required by Rez, (a) Customer will provide Rez’s payment processor with valid major credit card information and by such credit card will pay to Rez the Customer usage fees to which Rez may be entitled pursuant to this Agreement or (b) under the User Terms, Users will provide Rez’s payment processor with valid major credit card information and by such credit card will pay (i) to Rez the Customer usage fees to which Rez may be entitled pursuant to this Agreement and (ii) to Customer, the balance of Customer’s charges to the User. Customer will ensure that User charges are accurately and completely included on Customer’s booking pages in the Service and will provide Rez will access to its payment processor records and relevant books and records of Customer to determine or verify the fee payments to which Rez may be entitled pursuant to this Agreement. Customer agrees not to dispute payments properly made in accordance with this Agreement. Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments, all of which, other than taxes on Rez’s income, will be the responsibility of Customer and will be added by Rez to the booking fees.
3.3. Changes. Rez may change or add to its fees from time to time. Such changes or additions will be effective upon notice to Customer, including by email. Customer’s continued use of the Service following such notice will constitute Customer’s acceptance and agreement to be legally bound by the changed or additional fees.
4. Customer Responsibilities
4.1. Compliance. Customer will operate its business, provide Customer Data (including by obtaining all required consents from Users), and use the Service and Rez Content (defined below) in compliance with this Agreement, any documentation supplied by Rez relating to the Service (“Documentation”), any policies or requirements issued in writing by Rez, and applicable laws and licensing requirements, and without violating or infringing any intellectual property right, right of privacy, or other right of any User or of any third party. “Rez Content” means any information, image, video or other media, other than Customer Data, that is made available to Customer through or in connection with the Service, including any created or provided by Rez.
4.2. Circumvention. Customer will not, directly or indirectly, (i) license, sell, transfer, distribute, publish or otherwise make available or disclose the Service, Documentation, Rez Content, Rez technology or Rez proprietary rights (“Rez Assets”), (ii) copy, modify, adapt, decompile, reverse engineer, attempt to duplicate or make derivative, competitive or its own works based upon any of the Rez Assets, including any ideas, know-how, features, functions or graphics related to the Service, (iii) frame or mirror any Rez information or remove any proprietary notices from the Service or Rez Content, (iv) upload or provide any harmful, inaccurate, incomplete, inappropriate or unauthorized information to the Service, (v) interfere with or disrupt the integrity or performance of the Service, (vi) attempt to gain unauthorized access to the Service or any Third Party Service (defined below), (vii) use the Service other than for its own internal business purposes, including for any purpose that is competitive with Rez or for the benefit of any third party, or otherwise for any purpose other than the purpose for which the Service is intended, or (viii) assist any third party in performing any of the foregoing.
4.3. Confidentiality. Without limiting anything in this Section 4, Customer will maintain in strict confidence, and use reasonable care to protect and safeguard (i) the nonpublic terms and conditions of this Agreement or other information relating to the relationship between Customer and Rez, and (ii) Rez Content or other information, in any form, made available to Customer and reasonably considered by Rez as proprietary. Without limiting anything in this Section 4, Customer will not, directly or indirectly, except as permitted in this Agreement, (i) reproduce, disclose, or make available to any third party any such information, (ii) assist or enable any third party to access or use any such information, or (iii) use or exploit any such information to Customer’s or any other person’s or entity’s enrichment or advantage or to derive any economic gain or for any other purpose whatsoever. Without limiting the foregoing, Customer will not demonstrate, make available or otherwise describe the feature set of the Service to any person or entity that provides products or services that are similar to or in competition with those of Rez. All materials (including electronic media) provided by Rez, and copies thereof, in which any such information may be contained will remain the property of Rez. Upon written request of Rez, Customer will promptly deliver to Rez all such materials and destroy all materials prepared by Customer in which any such information may be contained. Notwithstanding the termination or expiration of this Agreement of the delivery or destruction of such materials, Customer will continue to be bound by its obligations under this Section 4.3.
4.4. Liability. Customer will have sole responsibility and liability for all matters and circumstances relating to Customer’s business and services. Customer will be solely responsible and liable for any acts or omissions of its Users or Customer’s directors, members, shareholders, partners, managers, officers, employees, agents, representatives, advisors and subcontractors (“Representatives”), including (i) any breach by any User of the User Terms, (ii) any act or omission that results in, or if taken by Customer would constitute, a breach of this Agreement, (iii) any use of, and activities, data, transactions or administration conducted through or that occur under, Customer’s account or its User accounts, whether or not authorized, or (iv) complaints or claims arising out of Customer’s services, including billing matters, personal injury, data privacy, or services provided to Users under the age of 18.
5. Data Processing
5.1. Customer Data. Customer will have sole responsibility and liability for all aspects (including accuracy, completeness and legality) of Customer Data provided by Customer. Customer consents to and authorizes Rez’s use of Customer Data in order for Rez to provide the Service. “Customer Data” means information, images, marks, video or other media that is provided to Rez or the Service by Customer or a User in the course of using the Service, including scheduling information and class descriptions or information that identifies or could reasonably be linked, directly or indirectly, with a particular User or other individual or household of a User or other individual, including their name, address, telephone number, email address, date of birth, social security number or other personally identifying information.
5.2. Data Security. Rez warrants that (i) Customer Data that is processed by Rez will be hosted on systems infrastructure that is consistent with commercially reasonable industry practices for comparable service providers of similar services under similar conditions, (ii) Customer Data will be managed by Rez utilizing technical and administrative safeguards designed to protect against unauthorized access to, or disclosure or use of, Customer Data by Rez employees and contractors and against reasonably anticipated third party threats to the security of Customer Data, (iii) Rez will promptly report to Customer any unauthorized access to (including any breach of systems security), or disclosure or use of, Customer Data, including a description of any mitigation and corrective action to be taken by Rez, and (iv) Rez will comply with all laws to which Rez is subject regarding the unauthorized access to (including any breach of systems security), or disclosure or use of, Customer Data. Except for breach by Rez of this Section 5.2, Rez will have no responsibility or liability with regard to the confidentiality, privacy or security of Customer Data or any unauthorized or unlawful disclosure, misappropriation, destruction, modification, loss, alteration, acquisition, use or access of Customer Data.
5.3. Third Party Applications. Customer consents to Rez’s use of the platforms, systems, products, services and applications of third parties in connection with the provision of the Service (“Third Party Services”) and to the sharing, use and processing of Customer Data with and by such third parties solely for such purpose. Notwithstanding anything to the contrary, Rez will have no responsibility or liability in connection with any of the Third Party Services, including in connection with any unauthorized or unlawful disclosure, misappropriation, destruction, modification, loss, alteration, acquisition, use or access of Customer Data or other data on or processed by any of the Third Party Services.
5.4. System Data. Notwithstanding anything to the contrary, Rez will have the right to monitor, collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service (including information concerning Customer’s and Users’ use of the Service and Customer Data and data derived therefrom), and Rez will be entitled, during and after the term of this Agreement, to use such information and data to improve or enhance the Service, or for other development, diagnostic, or corrective purposes in connection with the Service, or to develop products, analytics or services, and to disclose such information and data in aggregated or other de-identified form in connection with Rez’s business.
6. Proprietary Rights
6.1. Title to Service. The Rez Assets, including Rez names, trade secrets, know-how, ideas, designs, forms, methods and other tangible or intangible material or information, and the system data set forth in Section 5.4, are and remain the valuable property of Rez. Rez will have exclusive ownership of all materials, technology, ideas, inventions or other work product or information that are developed by Rez (including any based on feedback of Customer, any rights to which Customer hereby assigns to Rez) in the course of providing the Service.
6.2. Warranty Against Infringement. Rez warrants that the Service (other than any of the Third Party Services) does not infringe any third party’s United States patent, copyright or trade secret.
7. Indemnification. Rez agrees to indemnify, defend and hold harmless Customer and its Representatives from and against any and all losses, claims, obligations, liabilities, actions, suits, proceedings, demands, judgments, payments, costs and expenses (including court costs, amounts paid in settlement, judgments, and reasonable attorney fees and other expenses) and damages of any kind, nature or description whatsoever (“Damages”) arising out of any breach by Rez of Section 5.2 or Section 6.2 or any violation by Rez of applicable laws. Customer agrees to indemnify, defend and hold harmless Rez and its Representatives from and against any and all Damages arising out of (i) any breach of this Agreement by Customer or (ii) any matter for which Customer has responsibility or liability under this Agreement, including as set forth in Section 4.4.
8. Limitations of Liability
8.1. NO CONSEQUENTIAL DAMAGES. In no event will either party be liable or responsible to the other for any type of incidental, punitive, special, exemplary, reliance, indirect or consequential Damages, even if advised of the possibility of such Damages and regardless of the foreseeability of such Damages.
8.2. LIABILITY MAXIMUM. In the event Rez will be liable to Customer, Rez’s liability will not exceed, in the aggregate, the greater of fees paid by Customer to Rez during the twelve (12) months preceding the date on which the liability first arose.
8.3. Warranty Exclusions. Except for the express warranties set forth in this Agreement, Rez does not make, and hereby disclaims, to the full extent permitted by law, any and all express or implied (by operation of law or otherwise) or statutory warranties, including warranties of merchantability, fitness for a particular purpose, noninfringement and title, and any warranties arising from a course of dealing, usage or trade practice. Rez does not warrant, commit to or guarantee that the Service will be error-free or that it will perform in any particular manner or with any level of availability. Customer hereby waives all Damages based on any of the foregoing.
9. Additional Provisions
9.1. Marketing. Rez may publicly refer to Customer, orally and in writing, as a customer of Rez and may reference “business case” information for demonstration purposes, to potential customers, investors, regulators and in its marketing efforts.
9.2. Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement (except with respect to any fees due or payable hereunder) due to any cause beyond its reasonable control, including acts of God, sabotage, labor dispute, governmental act, network or connectivity failure, or failure of any third party software, facilities, servers or other products, equipment or services (even if any may be included in the Service).
9.3. No Publication. The grant of access and use of the Service under this Agreement and the carrying out of the transactions contemplated hereby will not be deemed publication by either party of all or any portion of the Service or Documentation.
9.4. No Third Party Beneficiaries. There will be no third-party beneficiaries to this Agreement.
9.5. Severability and Waiver. In the event any provision of this Agreement is held to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default and will not act to amend or negate the rights of the waiving party.
9.6. Assignment. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Neither party may assign this Agreement in whole as part, directly or indirectly, without the express prior written consent of the other party, and any attempted assignment without such consent will be void, provided that, either party may, without the consent of the other party, assign all of its rights and obligations under this Agreement to any person or entity that purchases all or substantially all of its assets or any successor entity to such party by way of merger or other business combination.
9.7. Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the Profile Page or at such other address as may be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is later.
9.8. Relationship of Parties. Rez and Customer are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Rez and Customer. Neither Rez nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
9.9. Entire Agreement. This Agreement, including each Profile Page (which is incorporated into and made part of this Agreement), constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. No text or information set forth on any other order, preprinted form or document (other than a Profile Page) will add to or vary the terms and conditions of this Agreement. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. For purposes of this Agreement, the term “written” means anything reduced to a tangible form by a party, including a printed or handwritten document, e-mail or other electronic format. The word “including” (and correlative words, such as “include” and “includes”) will not be construed as a term of limitation but will mean including without limiting the generality of any description preceding such term.
9.10. Amendment. This Agreement may be changed by Rez from time to time. Such changes will be effective upon notice to Customer, including by email. Customer’s continued use of the Service following such notice will constitute Customer’s acceptance and agreement to be legally bound by any such changes.
9.11. Binding Agreement. Each of the parties to this Agreement, and each person submitting the Profile Page on behalf of such party, represents and warrants that all necessary action has been taken to authorize such party’s execution, delivery and performance of this Agreement and that this Agreement is the valid and binding obligation of such party, enforceable in accordance with its terms.
9.12. Cumulative Rights and Remedies. Except as otherwise expressly provided in the Agreement, the rights and remedies of the parties under this Agreement (including the right to terminate the Agreement and the right to indemnification and the limitations on liability) will be cumulative with and in addition to, not exclusive or in replacement of, any other rights or remedies that may be available under any other agreement between the parties, at law or in equity. Customer will be liable for all costs and expenses (including reasonable attorney fees) incurred by Rez in connection with collecting any fees or enforcing its rights under this Agreement.
9.13. Survival. The obligations of the parties under this Agreement, which by their nature would continue beyond the termination or expiration of this Agreement, will survive termination or expiration of this Agreement, including Sections 7.2, 4.3, 5.4, 6.1, and 7 – 9.
9.14. Governing Law. The Agreement will be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania, without regard to its principles of conflicts of laws. Each of the parties submits to the exclusive, personal jurisdiction of either the Federal District Court for the Eastern District of Pennsylvania, the Court of Common Pleas of Philadelphia County, Pennsylvania or any municipal or local court located in such county for all claims, disputes or controversies involving the parties and relating to the Agreement; provided, however, nothing herein shall prevent a party hereto from asserting a claim for indemnification or any other claim hereunder against the other party hereto in connection with a third party action in the same jurisdiction where a third party action has been brought.
Accordingly, Customer and Rez, LLC (“Rez”), intending to be legally bound, agree as follows:
1. Service Access. Rez grants to Customer, during the Term (defined below), the right for Customer to access and use the Rez scheduling service (the “Service”) and to make the Service available for access and use by parents, players and other users of the Service (“Users”) who have accepted Rez’s user terms of service (“User Terms”). In addition, Rez will provide Customer with technical and User support services in accordance with Rez’s standard practices.
2. Term. The term of this Agreement will start on Customer’s submission of the Profile Page and will continue until either party terminates this Agreement as set forth below. Customer may elect to terminate this Agreement at any time by providing notice to Rez through the Service. In such event, Customer’s access and use of the Service will continue through the date of Customer’s termination notice. In addition to any other available rights or remedies, either party elect to terminate this Agreement immediately upon notice to the other describing in reasonable detail a breach of this Agreement by the other party or upon the other party’s failure to continue to function as a going concern or to operate in the ordinary course of business, or upon the bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or other similar proceedings of the other party. Rez may terminate or suspend any individual User account or access to the Service in Rez’s reasonable discretion. Rez will have no obligation to retain any Customer Data (defined below) for more than thirty (30) days after termination of this Agreement. Customer will not be entitled, in any circumstances, to a refund of any fees paid.
3. Fees
3.1. Usage Fees. Customer will pay a booking fee, in the initial amount designated by Rez (whether set forth on the Profile Page, on Customer’s booking pages in the Service, or otherwise in writing), without setoff or deduction, for each booking of any service of Customer, however designated (class, session, etc.), through the Service, whether such fee is separately collected from or included in the charges of Customer to its Users.
3.2. Fee Payment. Rez will determine the mechanics for payment of the booking fees. Customer will require its payment processor, from the charges paid by Users, to pay to Rez the Customer usage fees to which Rez may be entitled pursuant to this Agreement. Alternatively, if required by Rez, (a) Customer will provide Rez’s payment processor with valid major credit card information and by such credit card will pay to Rez the Customer usage fees to which Rez may be entitled pursuant to this Agreement or (b) under the User Terms, Users will provide Rez’s payment processor with valid major credit card information and by such credit card will pay (i) to Rez the Customer usage fees to which Rez may be entitled pursuant to this Agreement and (ii) to Customer, the balance of Customer’s charges to the User. Customer will ensure that User charges are accurately and completely included on Customer’s booking pages in the Service and will provide Rez will access to its payment processor records and relevant books and records of Customer to determine or verify the fee payments to which Rez may be entitled pursuant to this Agreement. Customer agrees not to dispute payments properly made in accordance with this Agreement. Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments, all of which, other than taxes on Rez’s income, will be the responsibility of Customer and will be added by Rez to the booking fees.
3.3. Changes. Rez may change or add to its fees from time to time. Such changes or additions will be effective upon notice to Customer, including by email. Customer’s continued use of the Service following such notice will constitute Customer’s acceptance and agreement to be legally bound by the changed or additional fees.
4. Customer Responsibilities
4.1. Compliance. Customer will operate its business, provide Customer Data (including by obtaining all required consents from Users), and use the Service and Rez Content (defined below) in compliance with this Agreement, any documentation supplied by Rez relating to the Service (“Documentation”), any policies or requirements issued in writing by Rez, and applicable laws and licensing requirements, and without violating or infringing any intellectual property right, right of privacy, or other right of any User or of any third party. “Rez Content” means any information, image, video or other media, other than Customer Data, that is made available to Customer through or in connection with the Service, including any created or provided by Rez.
4.2. Circumvention. Customer will not, directly or indirectly, (i) license, sell, transfer, distribute, publish or otherwise make available or disclose the Service, Documentation, Rez Content, Rez technology or Rez proprietary rights (“Rez Assets”), (ii) copy, modify, adapt, decompile, reverse engineer, attempt to duplicate or make derivative, competitive or its own works based upon any of the Rez Assets, including any ideas, know-how, features, functions or graphics related to the Service, (iii) frame or mirror any Rez information or remove any proprietary notices from the Service or Rez Content, (iv) upload or provide any harmful, inaccurate, incomplete, inappropriate or unauthorized information to the Service, (v) interfere with or disrupt the integrity or performance of the Service, (vi) attempt to gain unauthorized access to the Service or any Third Party Service (defined below), (vii) use the Service other than for its own internal business purposes, including for any purpose that is competitive with Rez or for the benefit of any third party, or otherwise for any purpose other than the purpose for which the Service is intended, or (viii) assist any third party in performing any of the foregoing.
4.3. Confidentiality. Without limiting anything in this Section 4, Customer will maintain in strict confidence, and use reasonable care to protect and safeguard (i) the nonpublic terms and conditions of this Agreement or other information relating to the relationship between Customer and Rez, and (ii) Rez Content or other information, in any form, made available to Customer and reasonably considered by Rez as proprietary. Without limiting anything in this Section 4, Customer will not, directly or indirectly, except as permitted in this Agreement, (i) reproduce, disclose, or make available to any third party any such information, (ii) assist or enable any third party to access or use any such information, or (iii) use or exploit any such information to Customer’s or any other person’s or entity’s enrichment or advantage or to derive any economic gain or for any other purpose whatsoever. Without limiting the foregoing, Customer will not demonstrate, make available or otherwise describe the feature set of the Service to any person or entity that provides products or services that are similar to or in competition with those of Rez. All materials (including electronic media) provided by Rez, and copies thereof, in which any such information may be contained will remain the property of Rez. Upon written request of Rez, Customer will promptly deliver to Rez all such materials and destroy all materials prepared by Customer in which any such information may be contained. Notwithstanding the termination or expiration of this Agreement of the delivery or destruction of such materials, Customer will continue to be bound by its obligations under this Section 4.3.
4.4. Liability. Customer will have sole responsibility and liability for all matters and circumstances relating to Customer’s business and services. Customer will be solely responsible and liable for any acts or omissions of its Users or Customer’s directors, members, shareholders, partners, managers, officers, employees, agents, representatives, advisors and subcontractors (“Representatives”), including (i) any breach by any User of the User Terms, (ii) any act or omission that results in, or if taken by Customer would constitute, a breach of this Agreement, (iii) any use of, and activities, data, transactions or administration conducted through or that occur under, Customer’s account or its User accounts, whether or not authorized, or (iv) complaints or claims arising out of Customer’s services, including billing matters, personal injury, data privacy, or services provided to Users under the age of 18.
5. Data Processing
5.1. Customer Data. Customer will have sole responsibility and liability for all aspects (including accuracy, completeness and legality) of Customer Data provided by Customer. Customer consents to and authorizes Rez’s use of Customer Data in order for Rez to provide the Service. “Customer Data” means information, images, marks, video or other media that is provided to Rez or the Service by Customer or a User in the course of using the Service, including scheduling information and class descriptions or information that identifies or could reasonably be linked, directly or indirectly, with a particular User or other individual or household of a User or other individual, including their name, address, telephone number, email address, date of birth, social security number or other personally identifying information.
5.2. Data Security. Rez warrants that (i) Customer Data that is processed by Rez will be hosted on systems infrastructure that is consistent with commercially reasonable industry practices for comparable service providers of similar services under similar conditions, (ii) Customer Data will be managed by Rez utilizing technical and administrative safeguards designed to protect against unauthorized access to, or disclosure or use of, Customer Data by Rez employees and contractors and against reasonably anticipated third party threats to the security of Customer Data, (iii) Rez will promptly report to Customer any unauthorized access to (including any breach of systems security), or disclosure or use of, Customer Data, including a description of any mitigation and corrective action to be taken by Rez, and (iv) Rez will comply with all laws to which Rez is subject regarding the unauthorized access to (including any breach of systems security), or disclosure or use of, Customer Data. Except for breach by Rez of this Section 5.2, Rez will have no responsibility or liability with regard to the confidentiality, privacy or security of Customer Data or any unauthorized or unlawful disclosure, misappropriation, destruction, modification, loss, alteration, acquisition, use or access of Customer Data.
5.3. Third Party Applications. Customer consents to Rez’s use of the platforms, systems, products, services and applications of third parties in connection with the provision of the Service (“Third Party Services”) and to the sharing, use and processing of Customer Data with and by such third parties solely for such purpose. Notwithstanding anything to the contrary, Rez will have no responsibility or liability in connection with any of the Third Party Services, including in connection with any unauthorized or unlawful disclosure, misappropriation, destruction, modification, loss, alteration, acquisition, use or access of Customer Data or other data on or processed by any of the Third Party Services.
5.4. System Data. Notwithstanding anything to the contrary, Rez will have the right to monitor, collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service (including information concerning Customer’s and Users’ use of the Service and Customer Data and data derived therefrom), and Rez will be entitled, during and after the term of this Agreement, to use such information and data to improve or enhance the Service, or for other development, diagnostic, or corrective purposes in connection with the Service, or to develop products, analytics or services, and to disclose such information and data in aggregated or other de-identified form in connection with Rez’s business.
6. Proprietary Rights
6.1. Title to Service. The Rez Assets, including Rez names, trade secrets, know-how, ideas, designs, forms, methods and other tangible or intangible material or information, and the system data set forth in Section 5.4, are and remain the valuable property of Rez. Rez will have exclusive ownership of all materials, technology, ideas, inventions or other work product or information that are developed by Rez (including any based on feedback of Customer, any rights to which Customer hereby assigns to Rez) in the course of providing the Service.
6.2. Warranty Against Infringement. Rez warrants that the Service (other than any of the Third Party Services) does not infringe any third party’s United States patent, copyright or trade secret.
7. Indemnification. Rez agrees to indemnify, defend and hold harmless Customer and its Representatives from and against any and all losses, claims, obligations, liabilities, actions, suits, proceedings, demands, judgments, payments, costs and expenses (including court costs, amounts paid in settlement, judgments, and reasonable attorney fees and other expenses) and damages of any kind, nature or description whatsoever (“Damages”) arising out of any breach by Rez of Section 5.2 or Section 6.2 or any violation by Rez of applicable laws. Customer agrees to indemnify, defend and hold harmless Rez and its Representatives from and against any and all Damages arising out of (i) any breach of this Agreement by Customer or (ii) any matter for which Customer has responsibility or liability under this Agreement, including as set forth in Section 4.4.
8. Limitations of Liability
8.1. NO CONSEQUENTIAL DAMAGES. In no event will either party be liable or responsible to the other for any type of incidental, punitive, special, exemplary, reliance, indirect or consequential Damages, even if advised of the possibility of such Damages and regardless of the foreseeability of such Damages.
8.2. LIABILITY MAXIMUM. In the event Rez will be liable to Customer, Rez’s liability will not exceed, in the aggregate, the greater of fees paid by Customer to Rez during the twelve (12) months preceding the date on which the liability first arose.
8.3. Warranty Exclusions. Except for the express warranties set forth in this Agreement, Rez does not make, and hereby disclaims, to the full extent permitted by law, any and all express or implied (by operation of law or otherwise) or statutory warranties, including warranties of merchantability, fitness for a particular purpose, noninfringement and title, and any warranties arising from a course of dealing, usage or trade practice. Rez does not warrant, commit to or guarantee that the Service will be error-free or that it will perform in any particular manner or with any level of availability. Customer hereby waives all Damages based on any of the foregoing.
9. Additional Provisions
9.1. Marketing. Rez may publicly refer to Customer, orally and in writing, as a customer of Rez and may reference “business case” information for demonstration purposes, to potential customers, investors, regulators and in its marketing efforts.
9.2. Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement (except with respect to any fees due or payable hereunder) due to any cause beyond its reasonable control, including acts of God, sabotage, labor dispute, governmental act, network or connectivity failure, or failure of any third party software, facilities, servers or other products, equipment or services (even if any may be included in the Service).
9.3. No Publication. The grant of access and use of the Service under this Agreement and the carrying out of the transactions contemplated hereby will not be deemed publication by either party of all or any portion of the Service or Documentation.
9.4. No Third Party Beneficiaries. There will be no third-party beneficiaries to this Agreement.
9.5. Severability and Waiver. In the event any provision of this Agreement is held to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default and will not act to amend or negate the rights of the waiving party.
9.6. Assignment. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Neither party may assign this Agreement in whole as part, directly or indirectly, without the express prior written consent of the other party, and any attempted assignment without such consent will be void, provided that, either party may, without the consent of the other party, assign all of its rights and obligations under this Agreement to any person or entity that purchases all or substantially all of its assets or any successor entity to such party by way of merger or other business combination.
9.7. Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the Profile Page or at such other address as may be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is later.
9.8. Relationship of Parties. Rez and Customer are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Rez and Customer. Neither Rez nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
9.9. Entire Agreement. This Agreement, including each Profile Page (which is incorporated into and made part of this Agreement), constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. No text or information set forth on any other order, preprinted form or document (other than a Profile Page) will add to or vary the terms and conditions of this Agreement. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. For purposes of this Agreement, the term “written” means anything reduced to a tangible form by a party, including a printed or handwritten document, e-mail or other electronic format. The word “including” (and correlative words, such as “include” and “includes”) will not be construed as a term of limitation but will mean including without limiting the generality of any description preceding such term.
9.10. Amendment. This Agreement may be changed by Rez from time to time. Such changes will be effective upon notice to Customer, including by email. Customer’s continued use of the Service following such notice will constitute Customer’s acceptance and agreement to be legally bound by any such changes.
9.11. Binding Agreement. Each of the parties to this Agreement, and each person submitting the Profile Page on behalf of such party, represents and warrants that all necessary action has been taken to authorize such party’s execution, delivery and performance of this Agreement and that this Agreement is the valid and binding obligation of such party, enforceable in accordance with its terms.
9.12. Cumulative Rights and Remedies. Except as otherwise expressly provided in the Agreement, the rights and remedies of the parties under this Agreement (including the right to terminate the Agreement and the right to indemnification and the limitations on liability) will be cumulative with and in addition to, not exclusive or in replacement of, any other rights or remedies that may be available under any other agreement between the parties, at law or in equity. Customer will be liable for all costs and expenses (including reasonable attorney fees) incurred by Rez in connection with collecting any fees or enforcing its rights under this Agreement.
9.13. Survival. The obligations of the parties under this Agreement, which by their nature would continue beyond the termination or expiration of this Agreement, will survive termination or expiration of this Agreement, including Sections 7.2, 4.3, 5.4, 6.1, and 7 – 9.
9.14. Governing Law. The Agreement will be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania, without regard to its principles of conflicts of laws. Each of the parties submits to the exclusive, personal jurisdiction of either the Federal District Court for the Eastern District of Pennsylvania, the Court of Common Pleas of Philadelphia County, Pennsylvania or any municipal or local court located in such county for all claims, disputes or controversies involving the parties and relating to the Agreement; provided, however, nothing herein shall prevent a party hereto from asserting a claim for indemnification or any other claim hereunder against the other party hereto in connection with a third party action in the same jurisdiction where a third party action has been brought.
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