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MASTER TERMS AND CONDITIONS

These Master Terms and Conditions (these “Terms”) are between Taylor Data, Marketing & Analytics, Inc. , a Minnesota corporation, located at 1725 Roe Crest Drive, North Mankato, MN 56003 (“Supplier”) and the client or customer that has signed a Sales Agreement (“Client”) incorporating these Terms by reference. Accordingly, Supplier and Client (each, a “Party” and collectively, “Parties”), by signing the Sales Agreement and intending to be legally bound, hereby agree to these Terms that are expressly incorporated into the Sales Agreement.

1.Scope of Agreement:

The Parties hereby acknowledge and agree that these Terms and the Sales Agreement(s) (collectively, “Agreement”) shall govern the purchase of products and performance of services described in the Sales Agreement (collectively, “Work”).

2.Termination:

(a)    Term . The term shall commence and continue in accordance with and as set forth in the applicable Sales Agreement (“Term”). If a Term extends beyond the expiration or termination of this Agreement, each such unexpired Sales Agreement shall continue in effect for the duration of the Term and the provisions of this Agreement shall survive and only apply to such unexpired Sales Agreement, until the expiration or earlier termination of the same, as permitted hereunder.

(b)   Termination for Convenience . Either Party may terminate this Agreement at any time, without cause or reason and without fine or penalty, by providing written notice to the other Party at least ninety (90) days in advance of such termination. For clarity, the Parties acknowledge and agree that Sales Agreement and similar documents for specific Work that have been accepted by both Parties or are otherwise in process cannot be terminated by either Party for convenience.

(c)   Termination for Cause . Either Party may terminate this Agreement at any time, if (i) the other Party materially breaches or defaults in the performance of its obligations under the document to be terminated; and (ii) such breach or default is not cured within thirty (30) days after written notice thereof was provided by the non-breaching Party to the other Party. Notwithstanding the foregoing, if the breach is a failure to pay any amounts due in a timely manner, the period for cure shall be ten (10) days after written notice thereof.

(d)   Effect of Expiration and Termination . All rights and obligations arising prior to the date of this Agreement shall not be affected by any such expiration or termination, including without limitation, the obligations of Client to pay for all Work, work in progress, raw materials, data and other expenses through the end of the Term, materials, inventory and actual costs and expenses incurred by Client (collectively, “Termination Costs”). Subject to the foregoing, upon the expiration or termination of this Agreement or Sales Agreement, (i) neither Party (or any of its affiliates) shall have any liability or obligation to the other Party (or any of its affiliates) under the terminated document, except for payment of all applicable Termination Costs; and (ii) such terminated document shall become void and have no further force or effect, the transactions contemplated in such document being thereby abandoned without further action by the Parties.

4.Authorizations and Acceptance:

(a)   Client Authorizations .  By signing the Sales Agreement, Client hereby authorizes all Work to performed.If the Work described in the Sales Agreement involves web intercept or the placement of Pixel Tags, Client hereby authorizes placement of such Pixel Tags on Client’s website(s). Pixel Tag ” means an HTML code snippet placed on Client’s website which is loaded when a user visits a website or opens an email. Customer understands and acknowledges that the Pixel Tags will be placed on the Client’s websites to create the web intercepts described in the Sales Agreement.

(b)    Acceptance . Within ten (10) business days after receipt of any Work, Client will provide Supplier with documentation (i) confirming the delivery of the same and (ii) either accepting the Work or identifying any defects in the Work or material inconsistencies with or failure to conform to the specifications set forth in the Sales Agreement (“Specifications”), if any. If Supplier does not receive such documentation within the 10-day period, all Work shall be deemed accepted by Client. Title to printed products shall transfer to Client effective as of the date the products are received by Client.

5.Pricing and Payment:

(a) Pricing and Payment . Client agrees to pay Supplier for the Work in accordance with the prices and rates specified in the applicable Sales Agreement. If such pricing is not specified in the applicable Sales Agreement, Client shall pay for all Work according to Supplier’s then-current standard prices.

(b) Invoicing; Payment . Supplier shall issue one or more invoices to Client for the Work as Supplier determines reasonably appropriate. Subject to applicable credit terms and limits, unless otherwise set forth in the Sales Agreement, payment terms are net thirty (30) calendar days from the date of the invoice or as otherwise specified in the applicable Sales Agreement. All payments shall be made by Client in U.S. dollars via check or automated clearing house transaction.

(c) Late Payments . Any undisputed payment not made in a timely manner under this Agreement shall bear interest at the rate of one and one-half percent (1.5%) per month from the due date to the payment date. No interest charges will apply to invoiced amounts due if, prior to the due date for such payment, Client provides (i) written notice to Supplier identifying the disputed amount due, with a detailed calculation of the alleged error; and (ii) payment in full of the undisputed portion of the amount due. Supplier reserves the right to revoke any credit extended to Client at any time and the right to withhold delivery of the Work until payment of all undisputed amounts is received. In the event that Client’s account is more than ninety (90) days in arrears, Client shall reimburse Supplier for the reasonable costs, including attorney’s fees, of collecting amounts due from Client.

(d) Payment of Taxes . The pricing provided by Supplier does not include any sales, excise, use, or other similar taxes imposed by federal, state, and local governments for the Work, any taxes based on income, gross receipts, or value of property payable to the related taxing authorities, and any non-U.S. taxes (including without limitation, VAT, GST, HST, PST, and QST). Client shall be responsible for payment of all such taxes, unless Client is tax exempt and has furnished Supplier with a current tax exemption certificate evidencing the same.

(e) Pricing Adjustments . The Parties acknowledge and agree that the pricing set forth in the Sales Agreement represents mutually agreeable pricing as of the date such document was executed and that changes in market conditions, industry requirements, and governmental laws and regulations may affect Supplier’s costs related to the Work provided under this Agreement. In the event that the Work involves mailing, any postage, freight or delivery costs and those costs increase, those increases will be implemented immediately on a pass through basis.  Supplier reserves the right to modify, the pricing terms set forth in this Agreement or any Sales Agreement by providing thirty (30) days prior written notice to Client. Under no circumstances shall Supplier be obligated to sell or license any product, service, or software for a price that is commercially unreasonable or otherwise below its costs and expenses for the same.

6.Confidentiality:

(a)Confidentiality. Each Party, including such Party’s Affiliates (“Receiving Party”), shall maintain the Confidential Information of the other Party, including such Party’s Affiliates (“Disclosing Party”), in confidence using such measures as it uses to protect its own information of a similar nature and, in any event, shall exercise such care in protecting the Confidential Information of the other Party as a reasonably prudent person would exercise. The Receiving Party agrees that the Confidential Information shall be used solely for the purposes of performing the Receiving Party’s obligations under this Agreement and, except for such limited purposes, the Confidential Information shall not be used for the Receiving Party’s benefit or be disclosed to any third party. The Receiving Party may disclose the Confidential Information of the other Party only to its employees and its principals, partners, shareholders, directors, officers, employees, representatives, professional advisors and/or agents (collectively, “Representatives”) as necessary to perform its obligations under this Agreement; provided that the Receiving Party shall be liable for the acts of its Representatives and any and all other persons to whom it discloses the Confidential Information. Each Party agrees that its obligations contained herein apply also to, and shall be binding upon, every entity, whether now or hereafter existing, that directly or indirectly controls, is controlled by, or is under common control with the applicable Party (collectively, “Affiliates”).

(b)   Confidential Information . Confidential Information shall include: (i) this Agreement and any applicable SOWs; (ii) customer lists and information; (iii) business and marketing plans; (iv) financial statements, projections, analyses and information related to costs and revenues; (v) Intellectual Property (defined below); (vi) all Third Party Data and Client Data provided herein; and (vii) all other information provided by a Disclosing Party of a proprietary and confidential nature (whether communicated by means of oral or written disclosures) that is marked “confidential” or is identified in writing by the Disclosing Party as confidential within thirty (30) days after disclosure; and (vii) all other information which by its nature would be considered Confidential Information.

(c)Exclusions. Confidential Information shall not include information which the Receiving Party can show: (i) was in the possession of the Receiving Party at the time it was first disclosed by the Disclosing Party; (ii) was in the public domain at the time it was disclosed to the Receiving Party; (iii) enters the public domain through sources independent of and unrelated to the Receiving Party and through no breach of this provision by the Receiving Party; (iv) is made available by the Disclosing Party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the Receiving Party from a third party, not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or (vi) was at any time developed by the Receiving Party independently of any use or reference to the Confidential Information of the Disclosing Party.

(d) Compelled Disclosure Notice . In the event that the Receiving Party, or its Affiliate or Representative, is legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall promptly give notice to the Disclosing Party so that the Disclosing Party may seek to quash such compulsion or to obtain an appropriate protective order. In the event the Disclosing Party does not quash such compulsion, and whether or not a protective order is obtained, the Receiving Party under compulsion shall disclose only such limited portion of the Confidential Information of the Disclosing Party as, in the written opinion of counsel for the Receiving Party, is required to avoid sanction by the court having jurisdiction of such matter.

(e)Disposition. The Receiving Party shall, upon request by the other, promptly return or destroy all documentation and other materials containing any Confidential Information of the Disclosing Party without retaining any copies thereof (except a single copy retained by counsel solely for documentary purposes). Each Receiving Party shall thereafter, upon request by the Disclosing Party, provide a written statement of the Receiving Party that all such materials have been returned to the Disclosing Party or have been destroyed.Notwithstanding the foregoing, Client will cease using and destroy any Third Party Data upon termination or expiration of this Agreement.

7.Data Management and Security:

(a) Client Data . Client warrants that it has the right to use and to have Supplier use on behalf of Client any data provided to Supplier or its Affiliates by Client including specifically customer names, identifying information, addresses and other contact information and related personally identifiable information (collectively, “Client Data”). Client represents, warrants and covenants that its execution of and performance under the Agreement including but not limited to use and disclosure of Client Data is and will be in accordance with applicable laws, rules and regulations (collectively, “Laws”). Client further represents, warrants and covenants that: (i) in the event that Supplier is providing email related services as part of the Work, Client will provide an accurate and up to date opt-out suppression file (“ Suppression File ”) at the beginning of the emails services an updated and accurate Suppression Files to Supplier as frequently as necessary to comply with CAN-SPAM any other applicable Laws; (ii) Client will not use, and will ensure that its agents, customers, clients and Affiliates do not use, data provided by Supplier for the purposes of making decisions about an individual’s eligibility for credit or insurance.  Client further warrants that it will designate on the applicable Sales Agreement if Client Data provided pursuant to Sales Agreement is subject to HIPAA, Gramm-Leach-Bliley or other statutes requiring enhanced data protection or enhanced data security procedures. Client represents and warrants that it has retained and will retain backup copies of all data, information, and/or items stored by Supplier or Client as part of Client’s use of the services and the software and that Client has implemented and regularly maintains its own disaster recovery plan.

(b)Client Privacy Policy.Client is solely responsible for maintaining its own privacy policies on all website(s) owned or operated by Client while any Work is being performed or any Sales Agreement is in effect.Client represents, warrants and covenants that all Client’s website privacy policies comply with applicable Laws, including without limitation, the California Consumer Privacy Act of 2018 and the EU General Data Privacy Regulation, as amended.

(b) Supplier Handling of Client Data . Supplier warrants that it will handle, process, and utilize all Client Data in accordance with any Laws applicable to Supplier. Supplier shall not be responsible for the loss or destruction of any Client Data. Supplier’s liability is limited to restoring lost or destroyed Client Data, provided such restoration can reasonably be performed by Supplier and Client provides Supplier with all source Client Data in readable form for such restoration.

(c)Supplier’s Data Sources.Client understands and acknowledges that Supplier may use third party data sources to provide the Services described in the Sales Agreement (“Third Party Data Source(s)”) that provides data to Supplier and to Client (“Third Party Data”). To the extent that Third Party Data Source(s) have provided representations and warranties regarding Third Party Data, Supplier will disclose any such warranties to Client upon request.NOTWITHSTANDING THE FOREGOING, Third Party Data is used by Supplier and provided to Client on an “AS IS” and “WHERE IS” BASIS WITH NO WARRANTIES WHATSOEVER.  client uses third party data at its own risk.

(d)No Data Storage. Supplier is not be obligated to store, maintain, or otherwise keep any Client Data, information, data files, and other documents after the Work has been completed. Supplier is not a data storage company and will return or destroy all such Client Data within a commercially reasonable time, in accordance with applicable Law, after completion of the applicable Work for which it was provided, unless specifically agreed upon in writing by the Parties.

(e)Security Breach.In the event of a known or suspected unauthorized access, destruction, use, modification, or disclosureof Client Data or Confidential Information or other compromise of Supplier’s information technology systems or networks (collectively, “Security Breach”), Supplier will: (i) notify Client as soon as promptly in the event of a confirmed security compromise; (ii) mitigate, to the extent practicable and reasonable, any harmful effects of such Security Breach; (iii) provide commercially reasonable cooperation to identify any third parties that received or obtained any Client Data; (iv) take all commercially reasonable efforts to recover Confidential Information on Company’s behalf; (v) take commercially reasonable steps to prevent a recurrence of a Security Breach in future.  In the event of a Security Breach, Supplier may also at its option terminate this Agreement and obtain a prorated refund of any pre-paid fees for the Term.

8.Intellectual Property:

(a) No Transfer of Intellectual Property . This Agreement will not transfer, modify, or change any Party’s rights to Intellectual Property. Accordingly, Client hereby retains sole and exclusive ownership of and rights to all Intellectual Property presently owned and/or later developed by Client. Supplier hereby retains sole and exclusive ownership of and rights to all Intellectual Property presently owned and/or later developed by Supplier.

(e) Authorization to Use Client IP . Client hereby authorizes Supplier to use the Intellectual Property of Client provided or specified for use or reproduction by Supplier in this Agreement (“Client IP”) as necessary or appropriate for the performance of the Work and Client represents and warrants that Client has the right to authorize Supplier to incorporate such Client IP into the Work. Client authorizes Supplier to place any necessary or appropriate markings on the Work related to Intellectual Property owned by or licensed to Supplier.

9.    Representations and Warranties :

(a)Supplier. Supplier represents and warrants that (i) Supplier has all right and authority required to enter into this Agreement; (ii) Supplier will comply with its obligations under this Agreement such that the Work shall materially conform to the Specifications for a period of ninety (90) days from the date the services are provided and products are delivered; (iii) Supplier will convey good title to tangible deliverables included as part of the Work; and (iv) the Intellectual Property of Supplier provided or specified for use or reproduction by Supplier in this Agreement will not infringe the Intellectual Property of any third party.

(b)Client. Client represents and warrants that (i) Client has all right and authority required to enter into this Agreement; (ii) Client will comply with its obligations under this Agreement; (iii) Client IP will not infringe the Intellectual Property of any third party; and (iv) Client will comply with all applicable Laws.

(c)Disclaimer. The representations and warranties set forth in this Agreement are in lieu of all other warranties, express or implied, including the warranties of merchantability, fitness for intended purpose, use, and non-infringement (to the extent not specifically provided), all of which are expressly disclaimed.

10.Limitations on Liability and Remedies:

(a) Consequential Damages . Notwithstanding anything to the contrary herein, the Parties and their respective Affiliates shall not be liable to any other party hereunder, either in contract or in tort, for any consequential, incidental, indirect, special, or punitive damages whatsoever, including without limitation, any loss of future revenue, income or profits, or any diminution of value or multiples of earnings damages, whether or not the possibility of such damages has been disclosed to the other party in advance or could have been reasonably foreseen by the other party.

(b) Direct Damages . Notwithstanding anything to the contrary herein, the aggregate and cumulative liability of Supplier and its Affiliates arising out of or relating to these Terms or any Sales Agreement to any other party hereunder shall not exceed the total amount actually paid by Client to Supplier during the three (3) month period immediately preceding the date the damage first occurred.

(c)Remedies. If the products do not conform to applicable Specifications, Supplier shall, at no additional cost to Client, promptly repair or replace the product. If the products infringe any Intellectual Property rights of a third party, Supplier shall at its option: (i) secure license rights from the third party; (ii) modify the Work to avoid infringement; or (iii) discontinue the Work which results in such infringement. If the products cannot be repaired, replaced, or made non-infringing within thirty (30) days after Supplier receives Client’s written notice of nonconformance, Client’s sole and exclusive remedy for nonconformance shall be the right to reject the nonconforming products and, if Client has paid for such products, Supplier shall reimburse Client an amount equal to the cost of the nonconforming products.

(d)Scope. The foregoing limitations, exclusions, disclaimers and remedies shall apply to the maximum extent permitted by applicable Law, even if any remedy fails its essential purpose.

11.Indemnification:

(a)   Indemnification. Each Party agrees to be responsible and assume liability for the negligent acts and omissions and the intentional misconduct of itself and its Representatives arising out of or in connection with this Agreement. Accordingly, each party (“ Defending Party ”) shall indemnify and defend the other party (“Protected Party”) and hold the Protected Party harmless from and against any and all claims, suits, actions, proceedings, demands, losses, payments, costs, expenses, damages, liabilities, fines, or penalties (including reasonable attorneys’ fees) brought by a third party (collectively, “Claim”) to the extent such Claims are connected to or arise from the Defending Party’s:

(i) breach of this Agreement, including without limitation, express representations, warranties, and covenants;

(ii) violation of Laws applicable to the Defending Party, including without limitation laws relating to intellectual property rights (provided, that in no event, shall Supplier be liable for any Claim arising out of its compliance with instructions, requirements, or specifications approved, provided, or required by Client or its Representatives (e.g. information, artwork, logos and trademarks provided by Client or its Representatives); or

(iii) gross negligence and/or willful misconduct.

(b) Tender Defense . The Protected Party shall promptly provide written notice to the Defending Party of any such Claims, promptly tender full control of the defense of any such Claims to the Defending Party, and reasonably cooperate with and provide non-financial assistance to the Defending Party in the defense of any such Claims.

(c)   Restrictions. The Defending Party will not be responsible for indemnifying or defending the Protected Party to the extent the Protected Party receives payment from an insurer or other third party as compensation or payment for any such Claims, and such compensation or payment shall be primary, or if (i) the Protected Party initiates a defense of any such Claim without notifying the Defending Party; (ii) the Protected Party fails to provide written notice to the Defending Party in a timely manner; or (iii) the basis of the Claim arises out of or is related to the Protected Party’s or its Representative’s negligence or willful misconduct.

(d)   Settlement Requirements . The Defending Party shall be not liable for any cost, expense, settlement, or compromise incurred or made by the Protected Party in any legal action without the Defending Party’s prior written consent.

12.Insurance:

Supplier shall at all times during the term of this Agreement obtain and maintain insurance with responsible companies in such amounts and against such risks as are customarily carried by business entities engaged in similar businesses similarly situated and may (and if requested by Client, will) furnish Client with a certificate of insurance evidencing such policies in January of each calendar year.

13.Force Majeure:

(a) Effect of Force Majeure . Each Party shall be excused from performance and shall not be in default in respect of any obligation hereunder to the extent that the failure to perform such obligation is due to an event of Force Majeure. If a Party wishes to claim protection in respect of an event of Force Majeure, it shall promptly after the occurrence of such event of Force Majeure, notify the other Party of the nature and expected duration of the Force Majeure and shall thereafter keep the other Party reasonably informed until such time as it is able to perform its obligations. The Parties shall use their reasonable endeavors to overcome the effects of the Force Majeure; mitigate the effect of any delay occasioned by the Force Majeure, including by recourse to alternative mutually acceptable (which acceptance shall not be unreasonably withheld by either Party) sources of services, equipment and materials; and ensure resumption of normal performance of this Agreement as soon as reasonably practicable; provided that neither Party shall be obliged to settle any strike, lock out, work stoppage, labor dispute, or such other industrial action by its employees.

(b) Definition of Force Majeure . For the purpose of this Agreement, “Force Majeure” shall mean any circumstance not within the reasonable control of the Party affected, but only if and to the extent that such circumstance materially and adversely affects the ability of the Party to perform its obligations under this Agreement and, despite the exercise of reasonable diligence, could not have reasonably been prevented, avoided, or removed by such Party. For clarity, Force Majeure shall include, without limitation, (i) natural calamities and acts of God (such as fires, contaminations, earthquakes, lightning, cyclones, hurricanes, floods, droughts, or such other extreme weather or environmental conditions, geological or ground conditions, epidemic, famine, and plague); (ii) acts of war (whether declared or undeclared), invasion, acts of terrorists, blockade, embargo, riot, public disorder, violent demonstrations, insurrection, rebellion, civil commotion and sabotage; (iii) cyberattacks and other hostile or offensive attempts to improperly access computer information systems, infrastructures, computer networks or devises, data, functions and other systems; and (iv) accidents and delays caused by third parties, as well as strikes, lockouts, work stoppage, labor disputes, and similar action by workers related to or in response to the terms and conditions of employment.

14.Notices:

(a)Notice. All notices, consents, waivers, and other communications that are required to be given or may be given pursuant to the terms of this Agreement (“Notice”) shall be in writing signed by the Party giving notice or by counsel for such Party and shall be sufficient in all respects if delivered in person, or mailed by registered or certified mail, postage prepaid, or sent by a commercial expedited delivery service, to the address provided above, as applicable or such replacement address as any Party hereto shall have designated by Notice to the other Party as provided herein. All Notices to Supplier shall also be sent to: Taylor Marketing, Data & Analytics, Inc. Attn: Chief Legal Counsel, 1725 Roe Crest Drive, North Mankato, Minnesota 56003.

(b) Receipt Requirements . Any Notice shall be effective when the Party giving the Notice has complied with Section 14(a) and when received by the Party specified to receive such notice. A Notice is deemed to have been received (i) upon receipt as indicated on the signed receipt, if given by hand or sent by registered or certified mail or commercial expedited delivery service; or (ii) if the Party to whom Notice is sent refuses delivery or if the Notice cannot be delivered due to a change in address for which no Notice was provided, then upon rejection, refusal, or inability to deliver. Notwithstanding the foregoing provisions, if any Notice is received after 5 p.m. on any business day or on any day other than a business day where received, the Notice shall be deemed to have been delivered at 9 a.m. on the following business day.

15.General Terms:

(a)  Assignment. These Terms, all Sales Agreements, and the rights, interests, and obligations related thereto may not be assigned to a non-Affiliate, third party by either Party (whether by operation of law or otherwise) without the prior written consent of the other Party. For purposes of this Section 15(a), any merger, consolidation, corporate restructure, or sale of assets or corporate interests by either Party shall not be deemed an assignment. Subject to the foregoing, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

(b) Subcontracting. Supplier may subcontract the performance of its obligations under this Agreement to other parties, provided that Supplier shall remain responsible for the performance of any subcontracted obligations.

(c)  Waiver. No waiver by either Party of any breach of, or of compliance with, any condition or provision of this Agreement by the other Party will be considered a waiver of any other condition or provision or of the same condition or provision at another time.

(d)  Non-Solicitation. During the Term and for twelve (12) months thereafter, the Parties shall not hire (or solicit for or induce the termination of the employment) any employee of the other Party who becomes known to such Party in connection with the performance of this Agreement, without the prior written approval of the other Party. The foregoing will not prohibit either Party from employing any individual who applies for a position in response to an internal posting, employment advertisement or other general solicitation of employment.

(e)  Independent Contractor . Supplier is an independent contractor, and is not an employee, servant, agent, partner, or joint venturer of Client. Neither Party has nor shall have any authority to bind or represent the other Party in any matter. While Client shall identify and request the Work to be performed, Supplier shall determine the means by which all Work is to be accomplished. Client is not responsible for withholding, and shall not withhold, FICA or any other employment-related taxes of any kind from any payments made to Supplier. Neither Supplier nor its employees shall be entitled to receive any benefits which employees of Client are entitled to receive, nor shall Supplier or its employees be entitled to receive from or through Client any workers’ compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing, or social security on account of Work performed under this Agreement.

(f)   Entire Agreement . These Terms, together with the Sales Agreement, sets forth the entire agreement and understanding of the Parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understandings of every and any nature among them. This Agreement shall be effective only when signed by the Parties. No Party shall be bound by any condition, definition, warranty, or representations, other than as expressly set forth or provided for in this Agreement, or as may be set forth in writing and signed by the Party to be bound thereby. These Terms and any Sales Agreement may not be amended, supplemented, changed, or modified, except by agreement in writing signed by the Party to be bound thereby. The provisions of this Agreement that, by their nature and content, must survive the completion, rescission, termination, or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement will so survive and continue to bind the Parties.

(g)  Inconsistent Documents Ineffective . Except as may be otherwise expressly stated in these Terms or any Sales Agreement executed by the Parties, no terms and conditions presented in a proposal, purchase order, order confirmation, acceptance, or any other document provided by either Party to the other, nor any electronic click-wrap, terms of use or similar online consent or acceptance language accompanying or set forth as a prerequisite to any electronic interface or utility associated with any Work, shall be deemed to amend the terms hereof and any such contradictory or additional terms shall be ineffective. In the event of any ambiguity or conflict between any of the terms and conditions contained in this Agreement and the terms and conditions contained in any other document, the terms and conditions of this Agreement shall control, unless the Parties have expressly provided in such other document that a specific provision in this Agreement is amended, in which case this Agreement shall be so amended, but only with respect to such document.

(h)  Severability. If any provision of this Agreement shall be held to be illegal, invalid, or unenforceable that provision shall be enforced to the greatest extent permissible so as to effect the intent of the Parties, and the legality, validity, and enforceability of the remaining provisions shall in no manner be affected or impaired thereby. If necessary to effect the intent of the Parties, the Parties will negotiate in good faith to amend this Agreement to replace the illegal, invalid, or unenforceable provision with legal, valid, and enforceable language that as closely as possible reflects such intent.

(i)   Venue. Any legal action arising out of or relating to this Agreement shall be commenced in a federal court in Minnesota or in state court in Nicollet County, Minnesota, and the appellate courts thereof, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action, or proceeding.

(j)   Governing Law . The validity, construction, and performance of this Agreement shall be governed by and construed in accordance with the internal laws of the State of Minnesota applicable to contracts executed in and performed entirely within such state, without reference to any choice of law, statutes, or principals thereof.

(k)  Waiver of Jury . To the fullest extent permitted by law, the Parties hereby waive any right to have a jury participate in the resolution of the dispute or legal action, whether sounding in contract, tort, or otherwise, between the Parties or any of their respective Affiliates arising out of, connected with, related to or incidental to this Agreement.

(l)   Attorney Fees . If any litigation shall be commenced to enforce, or relating to, any provision of this Agreement, or any collateral documents, the prevailing Party shall be entitled to an award of reasonable attorney fees (including fees related to the services of in-house counsel) and reimbursement of such other costs as it incurs in prosecuting or defending such litigation.

(m) Construction and Interpretation . The Parties acknowledge that these Terms and the Sales Agreement are the result of negotiations between the Parties and that this Agreement and shall not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement or based on a Party’s undertaking of an obligation under this Agreement. No provision hereof shall be construed as a limitation or modification of any other provision hereof. Unless otherwise specified in the relevant provision, “including” means “including without limitation” and no exclusion of unlisted items shall be inferred from their absence.

 

Master Terms and Conditions - Version 1, effective and posted 10.14.21