DemandEngine

Subject to the Agreement and the Rules (as defined below), DemandEngine hereby grants you the right to use and access the Services solely for your own internal business purposes.  In order to access the Services, DemandEngine will provide you with a username and password (the “Account”).  You are responsible for maintaining the confidentiality of your Account and all activity that occurs under your Account, including the activity of others to whom you grant access to your Account (“Users”).  You agree to immediately notify DemandEngine of any unauthorized use of your Account or any other breach of security.  You are liable for all loss or damage arising from your and your Users’ acts, omissions or failure to keep the Account secure.  You agree that your purchase of the right to access and use Services is neither contingent on the delivery of any future functionality or features or the delivery of any other services, nor is such purchase dependent on any oral or written public comments made by or on behalf of DemandEngine regarding future functionality or features.

The scope of services for any professional services listed in the Order Form is set forth within the document.  If DemandEngine is to provide customized professional services, the parties may enter into and execute a statement of work (“SOW”) that will include the scope of services to be provided by DemandEngine to Client and other terms and conditions related to these professional services. In the event of any conflict between any term or condition set forth in this Agreement and in a SOW, the terms and conditions of this Agreement shall govern, unless the parties expressly agree otherwise in such SOW.  Any SOW may be modified or amended only with the written consent of each of DemandEngine and Client. The purchase and performance of any professional services are separate and distinct from the Services and are not required for your use and enjoyment of the Services.

Your use of the Services is subject to your continued compliance with DemandEngine’s permission marketing policy, which is attached hereto and incorporated by reference herein (the “Rules”).

DemandEngine shall use commercially reasonable efforts to ensure that the core components of the Services shall have an uptime availability of at least 99.9% per month, excluding unavailability due to: (i) your equipment, software, facility, databases, or operator error not caused by DemandEngine or the Services; (ii) an interruption in your connection to the internet not caused by DemandEngine or the Services; (iii) scheduled downtime and/or emergency downtime; or (iv) a Force Majeure Event (as defined below).  “Standard Support” for the Services is available from 8 AM – 7 PM (EST), Monday through Friday, excluding US national holidays and is included in the fees set forth in the Order Form.  Emergency support is provided after Standard Support hours, and is limited to issues related to the availability or functionality of the Services.  DemandEngine will provide you with prior notice of any scheduled downtime via your Account, and shall, to the extent practicable, schedule any maintenance between the hours of 10 PM Saturday – 4 AM Sunday (EST).

Each Order Form sets forth your specific usage rights with respect to your use of the Services (“Usage Rights”).  It is your responsibility to ensure that you and your Users do not exceed the Usage Rights set forth in the Order Form.  You agree you will use the Services in compliance with the Agreement, the Rules and all applicable laws and regulations, including those related to spamming, privacy, data protection, intellectual property, consumer and child protection, pornography, obscenity or defamation.  Further, you agree you will not: (i) use the Services to send unsolicited or deceptive messages (including spam); (ii) make the Services available to anyone other than your Users; (iii) sell, resell (except to the extent permitted by DemandEngine in writing), rent or lease the Services; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (v) use the Services to store or transmit material containing malicious code, including, without limitation, viruses, worms, Trojan horses or other harmful code, files scripts or programs; (vi) use the Services in any manner that could damage, disable, impair or otherwise interfere with DemandEngine’s provision of the Services; (vii) store credit card or social security data in the Services; or (viii) attempt to gain unauthorized access to the Services.  In addition, you are responsible for securing all reasonably necessary consents from each individual or entity whose information, including personally identifiable information or IP addresses of computers or Internet service providers, is stored in or transmitted through the Services or otherwise provided to DemandEngine, its suppliers, and its third party vendors.

4.1. Customer further agrees that: (i) DemandEngine is not acting on Customer’s behalf as a Business Associate or subcontractor; (ii) the Services may not be used to store, maintain, process or transmit protected health information (“PHI”) and (iii) the Services will not be used in any manner that would require DemandEngine or the Services to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”).  In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected health information” or “PHI” shall have the meanings described in HIPAA.

5.1. Additional Services; Bump Upgrade.  During the Subscription Term, Client may use the Services to send that number of email messages or SMS messages as is listed in the Order Form (the  “Initial Message Commitment”).  During such Subscription Term, Client may increase the (i) Initial Message Commitment (each such increase, a “Bump Upgrade”) and/or (ii) add additional Services by executing an Order Form (collectively, the “Additional Services”). Additional Services will: (a) be coterminous with and expire at the end of the then current Subscription Term; and (b) and in the case of the Bump Upgrade, be priced at a rate listed in the Order Form.  Any messages that are unused will not carry forward to any period of time beyond such current Subscription Term. Any amounts paid for Additional Services are due and payable upon execution of the applicable Order Form, are non-refundable and cannot be used to set-off subsequent amounts owed under the Order Form or any other agreement between Client and DemandEngine.

5.2. Payment Terms; Taxes.  Client agrees to pay DemandEngine or an authorized third party all fees set forth in the applicable Order Form in accordance with the payment terms set forth herein or in such Order Form (the “Fees”).  Except as expressly set forth in the Order Form, all Fees are: (i) due in advance; (ii) nonrefundable; and (iii) based on Services purchased and not Services actually used. Client will pay all Fees in the currency set forth on the Order Form, and if Client is paying by credit card, Client hereby authorizes DemandEngine or an authorized third party to bill Client’s credit card for all payments due under the Order Form, including all future orders. Unpaid invoices that are not subject to a good faith dispute may accrue penalty interest at the rate of 1.5% per month on the amount past due, or the maximum amount permitted by law, whichever is higher, plus all reasonable costs of collection.  DemandEngine reserves the right to suspend or terminate Client’s access to the Services or this Agreement if Client fails to pay an invoice within 45 days of the invoice date.  DemandEngine fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (“Taxes“). Customer is responsible for paying all Taxes, excluding only taxes based on DemandEngine’s net income.  If DemandEngine or an authorized third party has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides DemandEngine or an authorized third party with a valid tax exemption certificate authorized by the appropriate taxing authority.

A party may terminate this Agreement: (i) if the other party is adjudicated bankrupt by a court of competent jurisdiction or becomes subject to an insolvency or other similar legal proceedings and such proceeding is not dismissed within thirty (30) days of the filing date; (ii) if the other party breaches any material term or condition, or any of its representations or warranties set forth in this Agreement, which breach is not cured within fifteen (15) days after written notice is received by the breaching party identifying the nature of the breach; or (iii) by mutual written consent.  Notwithstanding anything to the contrary set forth herein, DemandEngine may terminate this Agreement immediately in the event you violate a Rule or any applicable law or misappropriate or infringe upon a third party’s intellectual property rights.  If DemandEngine terminates this Agreement due to your breach, all fees set forth in the Order Form will be immediately due and payable.  If you terminate this Agreement due to DemandEngine’s breach, DemandEngine or an authorized third party shall refund to you any prepaid and unapplied fees.  Immediately upon any termination or expiration of this Agreement, your right to access and use the Services will terminate and you will cease all access to and use of the Services. Notwithstanding any expiration or termination of this Agreement, Sections 4, 5, 6, 7, 9, 10, 11, 13, 20 and 21 hereof will survive.

7.1. DemandEngine Intellectual Property Rights. This is an agreement for services and you are not granted any license under this Agreement.  As between you and DemandEngine, DemandEngine is and shall remain the sole owner of all right, title and interest in and to the Services, all software underlying the Services (the “Software”), and all intellectual property rights associated with the Services and the Software.  Except as expressly granted in this Agreement, you will not have or acquire any rights or interest in or to the Software or the Services.  You agree not to directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the Services or the Software; (ii) modify, translate, or create derivative works based on the Services or Software; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iv) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to the Services; or (v) remove any proprietary notices or labels from the Services or Software.  You agree all suggestions, enhancements requests, feedback, recommendations or other input provided by you relating to the Services or Software shall be owned by DemandEngine without the payment to you of any consideration.  Any rights not expressly granted in these Terms are reserved by DemandEngine.

7.2. Ownership of Customer Data. As between DemandEngine and Customer, all title and intellectual property rights in and to all electronic data or information submitted to and stored in the Services by Users (the “Customer Data) is owned exclusively by Customer. You agree that DemandEngine is authorized to access your Customer Data solely for the performance of Services and technical or customer support relating to such Services.

You acknowledge that in connection with its provision of the Services, DemandEngine will collect and analyze information and data about you and your recipient’s interactions with the Services (“Interaction Data”). Except as otherwise expressly set forth herein, DemandEngine will not own any Interaction Data; provided, however, that you hereby grant to DemandEngine a non-exclusive, fully-paid up, worldwide license to use Interaction Data for internal business purposes, including performance of Services.  After the thirtieth (30th) day following any termination or expiration of this Agreement, you agree DemandEngine has no obligation to retain the Interaction Data and may delete and destroy such Interaction Data without providing you with notice of such deletion.  Subject to the license set forth herein, Interaction Data will be considered your Confidential Information.

Each of you and DemandEngine represents to the other party that it has the legal authority to enter into this Agreement without violating any government order or any agreement with a third party.  In addition, you represent and warrant to DemandEngine that: (i) all Users are at least 18 years old; (ii) all information provided in the Order Form is accurate and truthful; (iii) your use of the Services and the Interaction Data, including the delivery of content to your recipients through the Services, will be, at all times, in compliance with the Agreement and all applicable laws, rules and regulations, and without any infringement of a third party’s intellectual property or privacy rights; (iv) you have permission to deliver the content through the Services to each of the recipients uploaded in your Account; and (v) neither you nor any of your officers, directors or personnel is located in a United States embargoed country, or is, or has been, named on the United States Treasury Department’s listing of specially designated nationals and blocked persons or is, or has been, otherwise blacklisted by any instrumentality of the United States..

EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, DEMANDENGINE AND ITS SUPPLIERS SHALL PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR QUALITY.  DEMANDENGINE AND ITS SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DEMANDENGINE AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE QUALITY OF THE SERVICES WILL MEET YOUR REQUIREMENTS.  YOU ACKNOWLEDGE THAT DEMANDENGINE AND ITS SUPPLIERS DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS RELATED TO THE USE OF SUCH COMMUNICATIONS FACILITIES AND THAT DEMANDENGINE AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY SUCH LIMITATION, DELAY OR PROBLEM.

10.1. Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).  CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 10.2 BELOW.

10.2. Limitations on Liability.  THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE, USE OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL BE AN AMOUNT EQUAL TO THE EQUIVALENT OF TWELVE (12) MONTHS OF SUBSCRIPTION FEES APPLICABLE AT THE TIME OF THE EVENT.  NOTWITHSTANDING THE PREVIOUS SENTENCE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT.

10.3. Acknowledgement. BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY.

11.1. Indemnification. Subject to terms and conditions set forth in this Section 11, Customer shall, at its sole cost and expense, defend DemandEngine and its Affiliates, subsidiaries, suppliers, officers, directors, shareholders, employees, consultants, representatives, agents, successors and assigns (including DemandEngine, the “DemandEngine Indemnitees”) from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”), arising from: (i) your breach of any Rule or Section 4 (Your Responsibilities); (ii) your gross negligence or willful misconduct; (iii) your infringement of a third party’s copyrights or trademarks, or misappropriation of a third party’s trade secrets; (iv) your violation of any applicable law or regulation; and/or (v) your use of the Services in a harmful, unethical, misleading, or offensive manner; and Customer shall indemnify DemandEngine Indemnitees from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim.

11.2. Indemnification Requirements.  The indemnified party shall promptly notify the indemnifying party of any Claim for which it seeks indemnification under this Section 11 and permit the indemnifying party to take over defense of the Claim, in which case the indemnified party may still participate in the defense with separate counsel at its own expense.  Furthermore, the indemnifying party shall not enter into a settlement that admits any wrongdoing on the part of the indemnified party without the indemnified party’s written consent, such consent not to be unreasonably withheld.

Confidential Information” means: (a) the terms of this Agreement and (b) any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the disclosing party (the “Disclosing Party”) to the receiving party (the “Receiving Party”) for purposes arising out of or in connection with this Agreement, that: (i) in the case of information in tangible form, is marked “confidential” or “proprietary;” (ii) in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within ten (10) days following disclosure; (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; and (iv) will include any reproduction of such information in any form or medium, or any part of such information. The following shall not be deemed Confidential Information: (1) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party; (2) information that was rightfully in the receiving party’s possession without restriction prior to disclosure; (3) information that was rightfully disclosed to the receiving party by a third party without restriction (4) information that was independently developed by employees and/or contractors of the receiving party who did not have access to and without use of or reference to the disclosing party’s Confidential Information; and (5) aggregate data collected or generated by DemandEngine or on behalf of DemandEngine regarding DemandEngine’s products and services (for purposes of providing or improving DemandEngine products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that does not contain any personally identifiable or Customer-specific information.   Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information), not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer.  Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section 13. Nothing in this Agreement will prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation. For purposes of this Agreement, “Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party.

13.1. Third Party Products.  DemandEngine may make available certain third party products that interoperate with the Services (“Third Party Products”). DemandEngine does not warrant or support Third Party Products.  If Customer installs or enables a Third Party Product for use with the Services, Customer grants DemandEngine permission to allow the applicable third party provider to access Customer Data as reasonably required for the interoperation of that Third Party Product with the Services.  DemandEngine is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by a Third Party Product or third party provider.

13.2. DemandEngine Applications.   In addition, DemandEngine may offer optional applications that interoperate with the Services to provide additional functionality, applications, integrations, and services (“DemandEngine Applications”).  If procured by Customer, DemandEngine Applications will be set forth on an Order Form.  Certain DemandEngine Applications contain features designed to interoperate with Third Party Products.  To use DemandEngine Applications, Customer may be required to obtain access to Third Party Products and Customer grants DemandEngine permission to allow the applicable Third Party Product to access Customer Data as reasonably required for the interoperation of that Third Party Product with the DemandEngine Application.  DemandEngine does not warrant DemandEngine Applications and is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by a Third Party Product or third party provider relating to use of such DemandEngine Application.

If the third party provider of a Third Party Product necessary for use with a DemandEngine Application ceases to make the Third Party Product available for interoperation with the DemandEngine Application on commercially reasonable terms, DemandEngine may immediately cease providing such DemandEngine Application without liability to Customer.

Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage not caused by either party; acts of government; civil unrest; acts of terror; strikes or other labor problems; or denial of service attacks or any technical issues not within a party’s control (individually and collectively, a “Force Majeure Event”).

14.1. Suspension for Ongoing Harm. DemandEngine may with reasonably contemporaneous telephonic notice to Customer suspend access to the Services if DemandEngine reasonably concludes that Customer’s Services are being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer’s Services are causing immediate, material and ongoing harm to DemandEngine or others. In the extraordinary event that DemandEngine suspends access to the Services, DemandEngine will use commercially reasonable efforts to limit the suspension to the offending portion of the Services and work with Customer to resolve the issues causing the suspension of the Services.  Customer agrees that DemandEngine shall not be liable to Customer nor to any third party for any suspension of the Services under such circumstances as described in this Section.

Customer grants DemandEngine, its suppliers, and its third party vendors a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement requests, recommendations, proposals, correction or other feedback or information provided by Customer related to the operation or functionality of the Services.

Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance.  Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located.

The Service is a “commercial item” as that term is defined at FAR 2.101. If Customer or User is a US Federal Government (Government) Executive Agency (as defined in FAR 2.101), DemandEngine provides the Service, including any related software, technology, technical data, and/or professional services in accordance with the following:  (a) if acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software),  nly those rights in technical data and software customarily provided to the public as defined in this Agreement; or (b) if acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement.  In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies.  Any Federal Legislative Agency or Federal Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as set forth in this Agreement.  If any Federal Executive Agency, Federal Legislative Agency, or Federal Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with DemandEngine to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective.  This United States Government Rights Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.

Each party agrees that before it seeks mediation, arbitration, or any other form of legal relief it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of any contract between the parties and which are allegedly being breached).  Within thirty days after such notice knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision.  The dispute resolution procedures in this Section 19 shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.

18.1. Mediation. Except as provided herein, any and all disputes, claims or controversies (“Disputes”) arising out of or relating to this Agreement shall be submitted to JAMS for mediation before arbitration or any other form of legal relief may be instituted.  Mediation may be commenced by a party providing JAMS a written request for mediation setting forth the subject of the Dispute and the relief requested.  The parties will cooperate with JAMS in selecting a single mediator and scheduling a mediation, which should take place within 45 days following a request for mediation.  The mediator shall be a retired judge who has had experience with technology disputes.  The parties agree that they will participate in the mediation in good faith and share equally in its costs.  The mediation shall take place in either Atlanta, or Dekalb County Georgia.

18.2. Arbitration.  Except as provided herein, any Dispute arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in either Atlanta or Dekalb County, Georgia and before a single arbitrator. The arbitrator selected shall be a retired judge who has had experience with technology disputes. In any arbitration arising out of or related to this Agreement, the parties agree the arbitrator is not empowered to award punitive or exemplary damages, and the parties waive any right to recover any such damages. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures if the amount in disputes exceeds $250,000 USD and its JAMS Streamlined Arbitration Rules and Procedures when lesser amounts are in issue. The arbitrator shall issue a written reasoned decision.  Each party shall bear their own costs in connection with the arbitration, although the arbitrator shall award the prevailing party its reasonable costs and attorneys’ fees.

This Agreement shall be governed in accordance with the laws of the State of Georgia and any controlling U.S. federal law and excluding the Uniform Computer Information Transactions Act (UCITA). If the subject matter of a Dispute does not permit the parties to use the dispute resolution procedures set forth in this Agreement or such dispute resolution procedures are deemed unenforceable, then any such Dispute arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in Georgia and must be brought in state or federal courts located in Atlanta or Fulton County, Georgia, as permitted by law.

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then all other provisions shall remain in full force and effect.  No joint venture, partnership, employment, or agency relationship exists between you and DemandEngine as a result of this Agreement or your use of the Services.  The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.  This Agreement constitutes the entire agreement between you and DemandEngine regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter.  Any term or condition set forth in any purchase order you provide that conflicts with any term or condition set forth in this Agreement will be null, void and of no legal force or effect.  You may not transfer or assign to a third party this Agreement or any right under this Agreement without DemandEngine’s prior written consent; provided, however, that no such consent shall be required in the event of an assignment as a result of a transfer or sale of all or substantially all of your assets or voting capital equity; provided that the acquiring party does not compete with DemandEngine, in which event, you must seek and obtain DemandEngine’s prior written consent to such assignment, which consent shall not be withheld unreasonably.

If DemandEngine makes a material change to any applicable Terms, then DemandEngine will notify you by either sending an email to the notification email address or posting a notice in your account.  If the change has a material adverse impact on you and you do not agree to the change, you must notify DemandEngine via admin@demandengine.com within thirty days after receiving notice of the change.  If you notify DemandEngine as required, then you will remain governed by the Terms in effect immediately prior to the change until the end of the then current subscription term for the affected Service.  If the affected Service is renewed, it will be renewed under DemandEngine’s then current Terms. DemandEngine may also send you other types of notices about the Services through your Account, by electronic mail or by written communication sent by first class mail or pre-paid post to your address set forth in the Order Form.  You must send all notices to DemandEngine via admin@demandengine.com.