Customer Agreement
Last Updated: January 24, 2025
This Customer Agreement (“Agreement”) is a legally bding contract between Agile Doyens, LLC (“adLLC”), a State of New York limited liability company, and the party individual or entity (“Customer”) who executes an Order for adLLC Products or Professional Services referencing this Agreement and is effective as of the date the initial Order is signed by both parties (“Effective Date”).
1. Definitions
“adLLC Products” means adLLC’s application, software, and related documentation that is made available to Customer, including all solutions offered by adLLC under the adLLC Products ToS, including Tik for Jira™ and Tik for Finance™.
“adLLC Products Terms of Service” or “adLLC Products ToS” means the terms and conditions for accessing and using adLLC Products by Customer available at agiledoyens.com/legal/ToS, as may be amended from time to time by adLLC.
“Authorized Users” means Customer’s employees with whom Customer grants access to its instance of adLLC Products. “Authorized Users” may be expanded to include consultants, contractors, agents, or third parties with whom Customer transacts business only upon prior written approval from adLLC.
“Background IP” means adLLC’s internally developed designs, libraries, and frameworks that are used or incorporated into a Deliverable and specified as ‘Background IP’ in an Order. Background IP is the exclusive property of adLLC.
“Customer Data” means all of Customer’s content, information, and data input into, processed, or otherwise accessible to adLLC through the Services, including, without limitation: (i) transactional data; (ii) contact data; (iii) market or account data; (iv) Customer’s Confidential Information; and (vi) Personal Data.
“Deliverables” means all designs, documents, software, work product, and other materials that are delivered to Customer or prepared by or on behalf of adLLC in the course of performing Professional Services pursuant to an Order.
“Fees” means, collectively, all fees paid to adLLC under this Agreement, including any License Fees, Services Fees, and Support Fees. Unless stated otherwise, all Fees are payable in U.S. Dollars.
“Intellectual Property Rights” means any and all of the following in any and all jurisdictions throughout the world (whether registered or unregistered): (a) patents and patent applications (including continuations, continuations-in-part, divisional, reexaminations, reissues, and extensions thereof); (b) copyrights; (c) trademarks, trade dress, service marks and other similar designations of source of origin, together with the goodwill symbolized by or associated with the foregoing; (d) trade secrets; and (e) all other proprietary or Intellectual Property Rights under any law or international conventions throughout the world, including all registrations of, and applications for, any of the items described in clauses (a)-(e) (inclusive).
“License Fees” means the fees due from Customer to adLLC for access to adLLC Products as specified in an Order.
“License Term” means the period Customer may access and use adLLC Products as specified in an Order.
“Order Form” means an order form that specifies the applicable License Fees, license terms, and any other terms associated with Customer’s authorized use of adLLC Products provided by adLLC and that is entered into between adLLC and Customer from time to time. Orders shall be deemed incorporated herein by reference.
“Order” means, collectively, any Order Form, Statement of Work, invoice, or other documentation signed or acknowledged by the parties that specifies the Fees and payment terms for any Services provided by adLLC to Customer and which is made pursuant to this Agreement. Orders are incorporated into this Agreement upon execution by both parties.
“Personal Data” is as defined in our Privacy Policy.
“Professional Services” means professional services provided by adLLC to Customer for software consulting, software development, or implementation of adLLC Products as set forth in an Order and according to the adLLC Professional Services Agreement.
“Project-Specific IP” means the software, applications, and programs developed by adLLC and delivered to Customer in a Deliverable. Project-Specific IP does not include adLLC Products, Background IP, or Third-Party Services.
“Related Data” means data or information (excluding Customer Data) associated with or arising out of the use of adLLC Products (including, without limitation, data associated with requests made to and responses generated in connection with adLLC Products). Related Data will be adLLC’s property, and neither adLLC nor any of its licensees have any duty to compensate or account to Customer in connection with the exercise of any of the foregoing rights.
“Services” means, collectively, the provision of adLLC Products, Professional Services, and/or Support Services.
“Services Fees” means the fees paid to adLLC for Professional Services as specified in an Order.
Statement of Work” means one or more documents describing the Professional Services and associated Deliverables to be provided to Customer by adLLC under the Professional Services Agreement.
“Support Fees” means the fees paid to adLLC for Support Services as specified in an Order.
“Support Services” means the maintenance, technical support, or other work performed by adLLC for Customer related to adLLC Products as specified in the adLLC Products Service Support Agreement.
“Third-Party Services” means any applications, software, or services that are provided by third parties, interoperate with the Services, or are identified as Third-Party Services in an applicable Order.
“Update” means all new versions, updates, revisions, bug fixes, patches, or other alterations of adLLC Products that are intended to correct an error in adLLC Products or are required to correct a breach of warranty or other violation of this Agreement or applicable law.
“Upgrade” means all new versions, updates, revisions, or other alterations to adLLC Products that are intended to improve, expand, or otherwise enhance the functionality of adLLC Products.
“Usage Metrics” means the quantitative limitations and units of measure, along with any other grants of or restrictions on use, applicable to the use of adLLC Products by Customer, as specified in an Order.
2. Scope of Services
2.1 Professional Services. adLLC may provide Professional Services as agreed to by the parties subject to the terms of this Agreement and the Professional Services Agreement and as may be further specified in an Order. Upon execution of an Order specifying Professional Services, the Professional Services Agreement is incorporated into this Agreement by this reference as of the Effective Date.
2.2 adLLC Products. adLLC will provide Customer with access to the adLLC Products purchased by Customer according to the terms of adLLC Products ToS and as may be further specified or modified in an Order. Access to adLLC Products is conditioned upon Customer’s compliance with the adLLC Products ToS and payment of applicable License Fees. To the extent purchased by Customer in an Order, adLLC will provide Support Services to according to the terms of the Service Support Agreement and conditioned on Customer paying all applicable Support Fees.
3. Fees. Customer agrees to pay all Fees as specified in an Order. Fees are non-cancellable and non-refundable when paid, and no refunds will be permitted if Customer terminates the Order or this Agreement before its expiration. Unless specified otherwise in an Order, Fees are due within thirty (30) days from the invoice date. If a dispute arises regarding a portion of an invoice, Customer will remit the portion of Fees not in dispute, and the parties agree to settle any disputed invoices in good faith. If Customer fails to dispute all or any portion of an invoice within thirty (30) days of receipt they waive to right to later dispute such invoice.
4. Payments. All electronic payments are processed through a third-party payment processor (“Payment Processor”), and adLLC does not access or store financial information, including, without limitation, credit card numbers, bank account numbers, or any other information by which a charge can be made. By utilizing the Payment Processor, Customer agrees to their separate terms of service and/or privacy policy. Customer understands and agrees that adLLC is not liable for Customer’s failure to complete a transaction through the Payment Processor. adLLC is not responsible for resolving any dispute, support, penalty, or issue that may occur between Customer and the Payment Processor. IF CUSTOMER PLACES PAYMENT INFORMATION ON FILE WITH THE PAYMENT PROCESSOR, CUSTOMER AUTHORIZES THE PAYMENT PROCESSOR TO CHARGE CUSTOMER AUTOMATICALLY ON A RECURRING BASIS DURING THE TERM SPECIFIED IN AN ORDER AND UPON ANY RENEWAL PERIOD.
5. Failure to Pay Fes. If any Fees are not received from Customer within thirty (30) days of the invoice date and Customer does not have a reasonable basis for disputing all or a part of such invoice, then charges accrue late fees at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable law, whichever is less, from the date payment was due until the date paid. If any amount owed by Customer is sixty (60) or more days overdue, then adLLC may, without limiting adLLC’s other rights and remedies provided under this Agreement or at law, suspend all Services until all Fees are paid in full (with all applicable overdue charges). Customer shall reimburse adLLC for all reasonable costs incurred in collecting any late payment or interest, including attorneys fees, court costs, and collection agency fees. ADLLC IS NOT LIABLE FOR ANY LOSSES RELATED TO CUSTOMER’S FAILURE TO PAY UNDISPUTED FEES WHEN DUE.
6. Taxes. Unless stated otherwise in an Order, Fees do not include any local, state, federal, or foreign taxes, levies, or duties of any nature, including value-added, sales, or withholding taxes. Customer is responsible for all applicable taxes associated with the purchase of adLLC Services, excluding only taxes based on adLLC’s income. If adLLC is legally obligated to pay or collect taxes, adLLC will invoice Customer unless Customer provides a tax exemption certificate authorized by the appropriate taxing authority. If adLLC is required to withhold taxes from the sale of adLLC Products, adLLC reserves the right to adjust any Fees quoted to reflect the applicable tax withholding requirements.
7. Term and Termination. This Agreement commences on the Effective Date and continues until terminated. Either party may terminate this Agreement at any time by providing at least thirty (30) days advance written notice to the other party. Either party may terminate this Agreement effective immediately if the other party: (i) materially breaches a term or condition contained in this Agreement and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured for thirty (30) days after the non-breaching party provides notice to the other party; (ii) becomes insolvent or files for bankruptcy; (iii) violates any applicable laws or regulations in connection with the performance of this Agreement.
8. Effect of Termination. Customer shall pay all outstanding Fees upon termination of this Agreement upon receipt of a final invoice from adLLC. Termination of this Agreement will terminate all outstanding Orders for Professional Services and/or adLLC Products then in effect. Upon termination, Customer and its Authorized Users shall immediately discontinue all use of the Services. Within fifteen (15) days of termination, Customer shall destroy, or if requested by adLLC, return all copies of the adLLC Products in Customer’s possession, if any, and, upon request by adLLC, certify the same in writing.
9. Third-Party Services. The Services may use, integrate with, or access Third-Party Services. All Third-Party Services are provided “As-Is,” and adLLC does not warrant any such Third-Party Services, regardless of whether they are recommended by adLLC or if they are otherwise required to use the Services. Any use by Customer of Third-Party Services is solely between Customer and the applicable Third-Party Services provider and Customer expressly relieves adLLC from any and all liability arising from Customer’s use of any Third-Party Services. adLLC is not responsible for any downtime or unavailability of Third-Party Services outside of adLLC’s reasonable control. Under no circumstances will adLLC be liable for any indirect, special, incidental, punitive, or consequential damages, including, without limitation, loss of data, business interruption, or loss of profits arising from the use of or the inability to use Third-Party Services.
10.Confidentiality. Each party agrees not to use or disclose any Confidential Information of the other party except for the purpose of meeting its obligations under this Agreement and will not use Confidential Information for any other purpose whatsoever. The receiving party may disclose Confidential Information of the other party to its employees, agents, contractors, and other representatives who have a need to know and who are bound to confidentiality obligations to less protective than the confidentiality terms of this Agreement provided that the receiving party remains responsible for their compliance. The parties acknowledge that a breach of this section by the receiving party could cause irreparable injury to the disclosing party that may not be adequately compensated in monetary damages. For such a breach, the disclosing party is entitled to seek equitable relief to protect its interests, including preliminary and permanent injunctive relief and any other remedies available to the disclosing party under this Agreement or at law. If disclosure is required by a court or government authority, the receiving party shall give the disclosing party prompt notice of any legal or governmental demand to disclose any Confidential Information and shall reasonably cooperate with the disclosing party in any effort to seek a protective order or otherwise to contest such required disclosure, at the disclosing party’s expense.
11. Customer Data
11.1 Use of Customer Data. adLLC will not: (i) modify Customer Data other than as necessary to provide the Services; (ii) disclose Customer Data except as compelled by law or as expressly permitted by Customer; or (iii) access Customer Data except to provide the Services, address service or technical problems, or at Customer’s request in connection with customer support matters. adLLC will, except to the extent provided in the Agreement or prohibited by applicable Data Protection Laws, destroy and delete all Customer Data in its possession within sixty (60) days of termination of this Agreement (unless sooner requested in writing by Customer).
11.2 Access Limitations. adLLC will only access Customer Data for which adLLC has a need to know in connection with its Services. If adLLC receives access to Customer Data for which adLLC does not have a need to know, or if adLLC no longer has a need to know, then adLLC will, as soon as practical: (i) take any action within adLLC’s reasonable control to prevent or remove access to such Customer Data; and (ii) inform the Customer department responsible for granting and/or removing access to Customer Data. adLLC will implement the following technical security controls: (a) multi-factor authentication for all access to Customer Data; (b) unique user identification for adLLC personnel; (c) role-based access control implementation; (d) automatic session termination after 15 minutes of inactivity; (e) access logging and audit trail maintenance; and (f) Immediate access termination upon personnel departure.
11.3 Data Protection. adLLC will maintain commercially reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data that adLLC accesses through the Services. The adLLC Data Processing Agreement applies if and to the extent that Customer Data includes Personal Data about Customer’s customers and is incorporated into this Agreement by reference. To learn more about how adLLC protects Customer Data, please see the adLLC Security Policy.
11.4 Customer Responsibilities. Customer is responsible for: (i) its compliance with this Agreement, any provided documentation, and any additional terms specified in an Order; (ii) the accuracy, quality, and legality of Customer Data, how Customer acquired Customer Data, Customer’s own use of Customer Data, and any Third-Party Services that have access to Customer Data; (iii) using commercially reasonable efforts to prevent unauthorized access to or use of Customer Data, and for notifying adLLC of any unauthorized access or use; and (iv) compliance with Data Protection Laws (defined in the DPA) and government regulations. adLLC is not responsible for any intentional or unintentional misuse of Customer Data by Customer (including Customer’s employees, subsidiaries, or affiliates) and/or by Third-Party Service providers to whom Customer has granted access to Customer Data, or for any other reasonable outside adLLC’s reasonable control.
11.5 Ownership of Customer Data. Customer will retain all rights, title, and interest in and to its Customer Data, including any and all copyrights, trademarks, and other Intellectual Property Rights and any associated goodwill (“Customer IP“). adLLC will not take any action inconsistent with Customer’s rights in the Customer IP. To allow adLLC to provide the Services, Customer hereby grants adLLC a non-exclusive, royalty-free, assignable, sublicensable, and irrevocable right and license to use, reproduce, adapt, and distribute Customer Data as reasonably necessary: (i) to provide the Services as required under this Agreement and to exercise adLLC’s other rights, and perform its other obligations, under this Agreement; and (ii) in perpetuity, to use and disclose Related Data, on a de-identified basis for statistical, analytical, research, marketing, product/service improvement, and other commercial purposes. The license at subsection (ii) above will survive the termination of this Agreement for any reason.
11.6 Related Data. adLLC may derive Related Data from Customer’s use of the Services. Related Data will be adLLC’s property, and neither adLLC nor its affiliates have any duty to compensate or account to Customer in connection with any of the foregoing rights. Except as required by Data Protection Laws or by valid legal process, adLLC will not, without consent, specifically identify Customer or any of its customers in association with such Related Data other than as expressly permitted under this Agreement, the adLLC Privacy Policy, or the adLLC Data Processing Agreement.
11.7 No Sensitive Data. Unless otherwise specified in this Agreement or a separate written agreement between Customer and adLLC, the Services are not designed or intended to comply with industry-specific or region-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Federal Information Security Management Act (FISMA), Gramm-Leach-Bliley Financial Services Modernization Act (GLB), Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), or other similar and applicable Data Protection Laws. Customer may not provide adLLC with access to Customer Data subject to such laws. If Customer shares, stores, or otherwise processes Customer Data subject to HIPAA, FISMA, GLB, Dodd-Frank, or other similar laws, Customer does so entirely at its own risk and acknowledge that adLLC will not be liable under such Data Protection Laws. Customer is solely responsible for ensuring that the Services meet all laws and regulations applicable to Customer’s business and the Customer Data processed through the Services.
11.8 Data Liability Disclaimer. Customer recognizes and agrees that storing or processing information online involves unauthorized disclosure or exposure risks and that Customer assumes such risks in accessing and using the Services. adLLC offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through error or actions, including adLLC’s own negligence. adLLC is not liable for any indirect, special, incidental, punitive, or consequential damages, including loss of data, business interruption, or lost profits arising from disclosure of Customer Data.
12. Compliance with Privacy Laws. Each party is responsible for compliance with applicable Privacy Laws (defined in the DPA) and protection of Personal Data applicable to the Services, as applicable. Each party will maintain appropriate administrative, physical, and technical safeguards for the protection, privacy, security, confidentiality, and integrity of the Customer Data collected, received, processed, or maintained by such party under this Agreement and will comply and ensure that its employees, agents, and contractors comply, with all applicable privacy laws. Customer represents and warrants that it will obtain all necessary consents before providing Customer Data, if applicable, to adLLC.
13. Privacy. The adLLC Privacy Policy identifies the categories of Personal Data adLLC collects and how adLLC may use and disclose it. By accepting this Agreement, Customer expressly consents to adLLCs collection and use of Personal Data as described in the Privacy Policy. Without limiting the Privacy Policy, Customer acknowledges and agrees that adLLC may disclose Personal Data when adLLC believes, in its sole discretion, that such disclosure is necessary or appropriate to: (i) comply with legal processes; (ii) enforce this Agreement; (iii) respond to claims that Customer Data violates the rights of third parties; (iv) investigate the use of or respond to alleged violations of Third-Party Services; or (v) protect adLLC’s rights, property, or personal safety or that of other users or the public.
14. Proprietary Rights
14.1 Ownership of Project-Specific IP. To the extent that a Deliverable contains Project-Specific IP as specified in an Order, and upon Customer’s payment of all applicable Services Fees, adLLC will assign all legal rights, title, and interest exclusively to Customer, including all Intellectual Property Rights, to all Project-Specific IP. To the extent adLLC retains any Intellectual Property Rights in any Project-Specific Code, adLLC hereby grants Customer an exclusive, royalty-free, transferable, irrevocable, and worldwide license (with rights to sublicense through multiple tiers of sublicensees) in all Project-Specific IP for any internal business purpose of Customer.
14.2 Background IP. adLLC may use or incorporate Background IP into any Deliverable if specified in an Order or otherwise disclosed to Customer in advance. adLLC will retain all Intellectual Property Rights in and to Background IP. Subject to the terms and conditions of this Agreement, adLLC grants Customer a non-exclusive, worldwide, non-sublicensable, non-transferable, and revocable right to access and use the Background IP identified in an Order solely as necessary to make internal business use of the Deliverables. Except as expressly permitted by mandatory applicable law and this Agreement, Customer agrees not to: (i) copy or republish Background IP except in the Deliverable to which it pertains; (ii) make Background IP available to any person other than its employees, contractors, and agents; (iii) use or access Background IP other than in the Deliverable in which it was provided by adLLC; (iv) modify or create derivative works based upon Background IP; (v) remove, modify, or obscure any copyright, trademark, or other proprietary notices contained in the Background IP; (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Background IP; or (vii) access or use Background IP to build a similar or competitive product.
14.3 Reservation of Rights. This Agreement does not convey any Intellectual Property Rights to adLLC Products, express or implied, to Customer. All rights, title, and interest in the Services and any associated Deliverable related to adLLC Products that are developed or delivered by or on behalf of adLLC under this Agreement, including all modifications, extensions, integrations, customizations, scripts, or other derivative works, are owned exclusively by adLLC. adLLC retains all rights, title, and interest in and to adLLC trademarks (all names and logos), and all other content provided on or through the Services (collectively, “adLLC IP“). This Agreement does not grant Customer any right to modify, distribute, license, sell, transfer, publicly display, perform, or otherwise exploit the adLLC IP beyond the rights outlined in this Agreement. Customer agrees not to take or permit any action impairing the rights of adLLC or its licensors in adLLC IP.
15. Feedback. Customer or its Authorized Users may provide adLLC with notes, emails, postings, letters, suggestions, reviews, concepts, or other written materials related to the Services (collectively, “Feedback“). Customer acknowledges and agrees that all Feedback will be adLLC’s property exclusively, and Customer does not maintain and will not assert any ownership rights, Intellectual Property Rights, or other rights to the Feedback. Customer further agrees that adLLC may publicly display, modify, create derivative works of, or otherwise use the Feedback for any legitimate purpose. Should the ownership of the Feedback be found under applicable law not to be adLLC’s property exclusively, Customer hereby grants adLLC or its designees a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to use any Feedback for any legitimate business purpose.
16. Promotional Rights. Customer agrees that adLLC may reference Customer in adLLC’s customer listings and place Customer’s name and logo on adLLC’s website and marketing materials relating to adLLC’s products and services, as well as in any press releases or customer “case studies” and the like. Customer hereby grants adLLC a limited license to use Customer’s trademarks (name and logo only) designated by Customer for such limited uses, subject to Customer’s trademark/logo usage guidelines, if any, provided by Customer to adLLC. Customer may reasonably request the removal of any such trademark/logo usage with written notice to adLLC.
17. Third-Party Services. Third-Party Services are licensed, not sold, from their applicable proprietary owner according to the terms of the Third-Party Services license, and this Agreement does not grant any ownership, licenses, or other rights in or to Third-Party Services other than as expressly provided to Customer in the applicable Third-Party Services license. To the extent adLLC uses or incorporates Third-Party Services into any Deliverable, such Third-Party Services are provided “as-is,” and adLLC does not warrant any Third-Party Services, regardless of whether such Third-Party Services are recommended or otherwise provided by adLLC. Unless otherwise specified in an Order, Customer’s use of Third-Party Services is solely between Customer and the applicable Third-Party Services provider, and Customer is responsible for compliance with all Third-Party Services provider’s fees, contracts, privacy policies, payment terms, user agreements, and any other agreements of the Third-Party Services provider. adLLC is not responsible for any downtime or unavailability of Third-Party Services. adLLC is not responsible for any disclosure, modification, or deletion of Customer Data, including Personal Data, resulting from access by Third-Party Services. Under no circumstances will adLLC be liable for any indirect, special, incidental, punitive, or consequential damages, including loss of data, business interruption, or loss of profits arising from the use of or the inability to use Third-Party Services.
18. Open Source Software. adLLC Products and/or Deliverables provided through the provision of Professional Services may include or utilize software that is distributed as “free” or “open source” software or otherwise distributed publicly in source code form under terms permitting modification and redistribution (“Open Source Software” or “OSS“). OSS is owned by third parties and licensed under the terms that accompany such OSS. This Agreement does not limit or expand Customer’s rights under the terms of any applicable OSS license. Any Fees include only Services in which the OSS was used and do not apply to the OSS itself. A list of all OSS used in adLLC Products is available by emailing doyens@agiledoyens.com. In the event of a conflict between the terms of this Agreement and the terms of any OSS licenses included adLLC Products, the terms of the OSS licenses control with regard to the OSS included with the adLLC Products for the terms in conflict, and this Agreement shall apply to the remainder of the adLLC Products.
19. Indemnification. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AGREES TO INDEMNIFY ADLLC AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AND ITS RESPECTIVE SUCCESSORS AND ASSIGNS (“INDEMNIFIED PARTIES”) FROM ANY THIRD-PARTY CLAIM, SUIT, PROCEEDING, OR GOVERNMENT ENFORCEMENT ACTIONS ARISING OUT OF, RELATED TO, OR ALLEGING AN INJURY OR LOSS CAUSED BY CUSTOMER’S ACCESS AND USE OF ADLLC PRODUCTS THAT, WITHOUT LIMITATION, INCLUDES: (I) ACCESS TO OR USE OF ADLLC PRODUCTS FOR ILLEGAL, FRAUDULENT, OFFENSIVE, OR TORTIOUS PURPOSES; (II) VIOLATION OF THIS AGREEMENT; (III) VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY; (IV) USE OF ANY THIRD-PARTY SERVICES; OR (V) ANY BREACH, DISCLOSURE, OR MISUSE OF CUSTOMER DATA BY CUSTOMER OR ITS AUTHORIZED USERS. ADLLC HAS THE RIGHT TO PARTICIPATE IN THE DEFENSE OF ANY SUCH SUIT OR PROCEEDING THROUGH COUNSEL OF ITS CHOOSING AT ITS EXPENSE.
20. Intellectual Property Indemnification. adLLC will indemnify Customer against any losses resulting from a claim alleging that adLLC Products or any Deliverable infringes third-party Intellectual Property Rights. If such a claim is or is likely to be made, adLLC will notify Customer to cease using such adLLC Products or Deliverable and, at its expense: (i) obtain for Customer the right to continue to use the adLLC Products or Deliverable, as applicable; (ii) modify the adLLC Products or Deliverable so they are non-infringing; (iii) replace the adLLC Products or Deliverable with non-infringing versions; or (iv) if adLLC is unable to comply with subparagraphs (i) through (iii), and at adLLC’s discretion, refund any License Fees or Services Fees applicable to such infringing adLLC Products or Deliverables. The foregoing indemnification obligation does not apply if: (i) adLLC Products or Deliverables have been modified other than by adLLC or its authorized representatives; (ii) Customer combines adLLC Products or Deliverables with any other software, application, or other systems not provided or otherwise approved in writing by adLLC and such combination or use is the cause of the adLLC Products’ or Deliverables’ alleged infringement; or (iii) to the extent Customer continues the allegedly infringing activity or continues to use the allegedly infringing adLLC Products or Deliverables after being notified by adLLC. Customer agrees to not continue any allegedly infringing activity after being informed of modifications approved by adLLC that would have avoided the alleged infringement.
21. will not violate any agreement or obligation existing between it and any third party.
22. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, IF ANY, THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT WARRANTY, WHETHER EXPRESS, IMPLIED, ORAL, OR WRITTEN, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT ADLLC KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, ADLLC DISCLAIMS ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ADLLC DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, EXPECTATIONS, OR INTENDED RESULTS OR BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, HARDWARE, APPLICATIONS, SYSTEMS OR SERVICES (iII THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE; OR (III) THAT ALL DEFECTS WILL BE CORRECTED. ADLLC IS NOT LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE ADLLC’S CONTROL. CUSTOMER AGREES THAT THE USE OR PURCHASE OF THE SERVICES IS NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ADLLC, ITS EMPLOYEES, OR AGENTS SHALL CREATE A WARRANTY OR INCREASE THE SCOPE OF ADLLC’S OBLIGATIONS.
23. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL ADLLC OR ITS SUPPLIERS, LICENSORS, OR AGENTS BE LIABLE TO CUSTOMER OR ANY OTHER PERSON UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING CONTRACT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, WORK STOPPAGE, BUSINESS INTERRUPTION, PERSONAL INJURY, COMPUTER FAILURE, LOSS OF PRIVACY, LOSS OR CORRUPTION OF DATA, OR ANY AND ALL COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADLLC OR ANY SUPPLIER, LICENSOR, OR AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ADLLC’S LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO ADLLC FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.
24. Non-Solicitation and Non-Circumvention. The parties agree that, during the term of this Agreement and for twelve (12) months thereafter, neither will, directly or indirectly, in any manner divert or attempt to divert from the other party any business, employee, or contractor, through solicitation or otherwise, without the prior written consent of the other party. The foregoing does not prohibit a party from placing any general advertising or job posting for employees and hiring individuals that respond to such general advertisements, so long as such advertisements are not specifically directed to any employees of the other party or its affiliates. Without limiting the generality of the foregoing, Customer agrees to not: (i) solicit Professional Services from any adLLC employee and/or contractor outside of this Agreement, (ii) pay any adLLC employee and/or contractor directly; (iii) circumvent or attempt to circumvent this Agreement, or in any way utilize any Professional Services from any adLLC employee and/or contractor outside of this Agreement without adLLC’s prior written consent.
25. Dispute Resolution. For any dispute, Customer agrees first to contact adLLC at doyens@agiledoyens.com and attempt to resolve the dispute informally. If the parties cannot resolve the dispute informally after a period of sixty (60) days, any claim or controversy relating to this Agreement (except for actions seeking injunctive relief) shall be settled by binding arbitration according to the Commercial Rules of the American Arbitration Association. The arbitration shall be conducted by a single arbitrator selected by the parties no later than ten (10) days after delivery of the demand for arbitration or, failing such agreement, appointed pursuant to the Commercial Rules of the American Arbitration Association. The arbitrator shall be a retired judge or attorney licensed to practice law in the State of New York with experience in similar disputes. The arbitration shall be conducted in New York, New York, unless otherwise agreed by the parties. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The prevailing party in any arbitration is entitled, in addition to any other rights or remedies, to reimbursement for its expenses incurred, including arbitration costs and reasonable attorneys’ and arbitrators’ fees. This arbitration provision is governed by the Federal Arbitration Act.
26. Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of New York, excluding the body of law pertaining to conflicts of law. Any dispute between the parties that is excluded from the arbitration agreement or that cannot be heard in small claims court shall be resolved in the federal courts located in the County of New York, New York, and the parties submit to the personal and exclusive jurisdiction of these courts.
27. General Provisions
27.1 Entire Agreement. This Agreement and all exhibits and addenda incorporated by reference comprise the entire agreement between the parties relating to the subject matter. This Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter.
27.2 No Amendments; No Waiver. This Agreement may not be modified or amended except in writing, signed by a duly authorized representative of each party; no other act or custom shall be deemed to amend or modify this Agreement. No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent is in writing and signed by the party that has given such waiver or excused such breach.
27.3 Independent Contractors. The relationship of the parties is that of independent contractors. Nothing in this Agreement shall be construed to constitute a partnership or joint venture of the parties, nor shall either party be deemed the agent of or have the right to bind the other party without the prior written consent of such party.
27.4 Assignment. Neither party may transfer or assign this Agreement without the consent of the other party. Notwithstanding the foregoing, no consent shall be required for an assignment of this Agreement made pursuant to a merger, consolidation, or the acquisition of all or substantially all of the business and assets of adLLC. This Agreement will bind and continue to the benefit of the parties and their successors and permitted assigns.
27.5 Injunctive Relief. The parties acknowledge that a breach of the Sections entitled ‘Confidentiality’ and ‘Proprietary Rights’ could cause irreparable injury to the non-breaching party that may not be adequately compensated in monetary damages. For such a breach, the non-breaching party is entitled to seek equitable relief to protect its interests, including preliminary and permanent injunctive relief.
27.6 Rights Cumulative. No right or remedy conferred upon or reserved to either of the parties is intended to be exclusive of any other right or remedy (unless such intent is expressly set forth in such provision), and every right and remedy shall be cumulative and in addition to any other right or remedy, now or hereafter legally existing upon any default.
27.7 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the parties shall mutually agree on an alternate, legally valid, and enforceable provision. The remainder of this Agreement shall continue in full force and effect to the extent that continued operation under this Agreement without the unenforceable provision is consistent with the intent of the parties as expressed in this Agreement.
27.8 Injunctive Relief. The parties acknowledge that a breach of the Sections of this Agreement entitled ‘Proprietary Rights’ or ‘Confidential Information’ could cause irreparable injury to the other party that may not be adequately compensated in monetary damages. In the event of such a breach, the non-breaching party shall be entitled to seek equitable relief to protect its interests, including, without limitation, preliminary and permanent injunctive relief.
27.9 Force Majeure. Neither party is liable for any failure or delay in its performance under this Agreement or due to forces beyond its reasonable control (“Force Majeure Event”). The party claiming a Force Majeure Event shall notify the other party and its performance is excused for the period of the delay and extended for an equivalent period.
27.10 Notices. Either party may give notice to the other party at any time by electronic notification or letter delivered by first-class postage prepaid mail or overnight courier to the addresses set forth in an applicable Order. Either party may at any time designate another address by notifying the other party in writing. Customer may also contact adLLC regarding this Agreement by emailing: doyens@agiledoyens.com.
27.11 Survival. Any provision of this Agreement which contemplates performance after the expiration or earlier termination of this Agreement, or which expressly states that it shall survive termination of the Agreement, shall survive such expiration or termination and shall continue in full force and effect until fully satisfied.