Terms Of Service
These Terms of Service, together with applicable Order Forms and all links to materials referenced herein (collectively, this "Agreement"), describe the terms and conditions under which you ("Customer") may access and use the Services (defined below) of Data Bid Machine, Inc. ("DBM").
BY CLICKING THE "ACCEPT" BUTTON, OR ACCEPTING THIS AGREEMENT THROUGH AN ORDER FORM THAT INCORPORATES THIS AGREEMENT, OR USING DBM’S SERVICES, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF OTHER COMPANIES OR ENTITIES (FOR INSTANCE, AS AN AGENCY OR AUTHORIZED RESELLER), THEN CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO BIND SUCH COMPANIES AND ENTITIES TO THIS AGREEMENT.
DBM MAY UPDATE OR OTHERWISE MODIFY THIS AGREEMENT FROM TIME TO TIME. CUSTOMER’S CONTINUED USE OF THE SERVICES AFTER AN UPDATE WILL CONSTITUTE ACCEPTANCE.
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, DBM and Customer hereby agree as follows:
1. DEFINITIONS
a. "Applicable Law(s)" means any applicable federal, state, and foreign laws or regulations or any industry self-regulatory rules or guidelines that relate to a Party’s rights and obligations under this Agreement (including, but not limited to, the Children’s Online Privacy Protection Act (COPPA)).
b. "Authorized Users" mean Customer’s employees and contractors who are authorized by Customer to access the DBM Account and use the Services on Customer’s behalf and have agreed to comply with the terms of this Agreement.
c. "Customer Content" means advertisements, campaign content, information about campaign performance, content DBM accesses on Customer’s Search Account(s), and other content in any media and format that is provided by Customer or obtained by DBM on Customer’s behalf for use with the Services.
d. "DBM Account" means the online account created by or on behalf of Customer to access the Services.
e. "End Users" means any natural persons accessing, using, or otherwise interacting with Customer Content.
f. "Fees" are defined in Section 6(a).
g. "DBM Materials" means DBM’s Technology, websites, dashboards, visual interfaces, graphics, design, templates, compilation, computer code, any data (including contact data) provided by DBM and all other elements of the Services, including any enhancements and modifications thereto and derivative works thereof.
h. "Order Form" means any form, invoice or record within Customer’s Account dashboard that set forth the Services, Term, Fees, credits and other details, and incorporates this Agreement by reference.
i. "Personal Data" is defined by the Applicable Law of each End User’s residence.
j. “Search Accounts” means Customer’s account(s) with third-party websites on which Customer is advertising.
k."Services" mean the DBM search keyword expansion, bid price optimization, and other service offerings made available to Customer under this Agreement.
l. "Technology" means the DBM proprietary technology used to provide the Services, including code, machine learning and artificial intelligence algorithms, application programming interfaces ("APIs"), dashboards or software development kits ("SDKs").
m. "Term" has the meaning set forth in Customer’s Order Form.
2. DBM SERVICES
a. Access and Use
i. DBM License Grant. Subject to Customer’s payment of all applicable Fees and compliance with this Agreement, DBM hereby grants Customer during the Term a personal, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use
(a) the Services set forth in the applicable Order Form, and (b) the DBM Materials solely in connection with the Services.
ii. Customer License Grant. Customer hereby grants DBM during the Term a personal, non-exclusive, transferable, sublicensable, non-revocable right to access and use (a) its Search Account(s), and (b) Customer Content in connection with the Services, and as otherwise outlined in this Agreement.
b. Use Restrictions. Except as permitted through the Services (or otherwise by DBM in writing), Customer shall not, and shall not permit a third party, to:
i. use the Services or DBM Materials for any purpose other than for Customer’s own internal business purpose;
ii. license, sell, transfer, assign, distribute, host, rent, lease, or otherwise commercially exploit the Services or DBM Materials;
iii. modify, prepare derivative works of, disassemble, decompile or reverse engineer any part of the Services or DBM Materials, use unauthorized APIs, create more Accounts than necessary, or attempt to gain access in any way to data outside the scope of the Services;
iv. remove any proprietary notices from the Services or DBM Materials;
v. deliver or introduce any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the Services or DBM Materials; or
vi. use the Services or DBM Materials in any manner or for any purpose that infringes, misappropriates, or other otherwise violates any other party’s rights, this Agreement, or Applicable Law.
c. Beta Versions and Trials. DBM may make new features or functionality related to the Services available to Customer as a beta, pilot, test or similar description (each, a “Beta Version”), or offer a new or existing Customer a trial of the Services for a limited evaluation period (each, a “Trial”). Customer’s use of Beta Versions or Trials are governed by this Agreement, except that they are provided by DBM “AS-IS”, at Customer’s own risk and excluded from all warranties and indemnities hereunder. DBM may discontinue or terminate Beta Versions or Trials at any time in its sole discretion and may choose not to make Beta Versions generally available. The Initial Term (as defined below) will begin immediately upon the end of the Trial, unless Customer opts out of the Initial Term by providing notice at least five (5) days before the end of the Trial.
3. CUSTOMER RESPONSIBILITIES
a. General. Customer is solely responsible for (i) its use, and its Authorized Users’ use, of the Services and DBM Materials, (ii) complying with all technical requirements communicated by DBM to Customer, including, but not limited to, implementing Technology supplied by DBM on Search Accounts, (iii) providing DBM with access to Search Accounts, and (iv) for all activities occurring in its DBM Account.
b. DBM Accounts.
i . DBM Account Set-Up. Customer is responsible for ensuring that all information used to set-up and maintain an Account is up-to-date, complete and accurate during the Term, including without limitation contact, billing, and payment information relating to Services.
ii. Passwords and Log-Ins. All passwords and log-in details provided to, or created by, Customer in connection with this Agreement must only be used by and for Customer. DBM Account passwords and log-in details may not be shared with any other person or entity, other than Authorized Users. Customer will secure its DBM Account passwords and log-in details and promptly notify DBM of any breach or suspected breach of security, misuse or unauthorized access.
c. Search Accounts.
i. Search Account Access. Customer is responsible for (a) acquiring any permissions necessary from Search Accounts in order for DBM to access and use Customer’s Search Accounts to provide the Services, and (b) granting DBM standard access to its Search Account manager or master account to an alias provided by DBM.
d. Use of Trademarks.
During the Term, Customer grants DBM the right to use Customer’s approved trademarks, logos, and names on DBM’s press releases, websites, social media, and other promotional materials, solely to identify Customer as a customer of DBM. In addition, Customer grants to DBM the right to publish, distribute or otherwise disseminate any press release, advertising or publicity matter having any reference to the other party of this Agreement.
4. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
a. DBM Property. DBM owns or controls all right, title and interest in and to the Services and DBM Materials, including all intellectual property rights contained therein. Customer’s right to use the Services and DBM Materials are strictly limited to those rights expressly granted in this Agreement and all other rights are reserved to DBM.
b. Customer Property. Customer owns or controls all rights in and to Customer Content and Customer CRM Data. DBM will not use Customer Content or Customer CRM Data for any purpose other than to: (a) provide Services to Customer as provided in this Agreement and (b) improving DBM’s Services, benchmarking and reporting.
c. Feedback. The parties agree that any comments, ideas, suggestions or feedback provided by Customer or Authorized Users may be used by DBM to develop and improve the Services, DBM Materials, and new products or new services without compensation, notice or obligation to such Customer or Authorized User.
d. Third-Party Trademarks. Any third-party trademarks, product or company names referenced in the Services or DBM Materials are the property of their respective owners and may not be used without the prior written permission of the owner.
5. FEES AND PAYMENT TERMS
a. Fees. Customer agrees to pay the fees for the Services (“Fees”) as set forth (i) when Customer signs up for a DBM Account (“Self-Service”), or (ii) in Customer’s Order Form as applicable. Fees are determined as a percentage of Customer’s actual monthly advertising spend (“Spend”) with Search Accounts, as reported in the Customer’s Search Account. Except as otherwise expressly set forth herein, payment obligations are non-cancelable and Fees, once paid, are non-refundable. DBM may offer Customer certain trials, promotions, discounts, or other special offers which will be reflected in Customer’s Order Form.
b. Payment Terms.
i. Self Service. If Customer elects to use Self-Service, Fees will be charged to Customer’s credit card monthly in advance. Customer is responsible for ensuring such funds cover the Fees due. If Customer’s account does not have sufficient funds or Customer’s credit card declines a charge for the Fees due, DBM may suspend the provision of the Services to all of Customer’s DBM Accounts until the Fees due are paid in full. DBM reserves the right to change its Fees and to institute new charges at any time upon notice to Customer via written notice in accordance with Section 15(l) of this Agreement.
ii. Order Form. If Customer elects to execute an Order Form(s) with DBM for Services, Fees for Services will be invoiced monthly in arrears. Fees may also include additional fees for onboarding and setup.
c. Taxes. Fees are quoted exclusive of any Taxes (defined below). Customer is responsible for all sales, use, value added, withholding, and any other similar taxes imposed by federal, state, local, or foreign governmental entities on the transactions contemplated by this Agreement ("Taxes"), excluding taxes based solely upon DBM’s net income, even if DBM did not collect and remit such Taxes on Customer’s behalf. If DBM is assessed fines, penalties or payments for non-payment of Taxes, then DBM will be entitled to full reimbursement of such amounts by Customer.
d. Non-Payment; Late Payment. DBM may suspend or terminate Customer and its Authorized Users’ access to the Services, in whole or in part, without notice, for non-payment of Fees. Termination or suspension will not relieve Customer of its obligation to pay Fees pursuant to this Agreement. Customer is prohibited from creating new DBM Accounts until the Fees due are paid in full. DBM reserves the right to charge a reactivation fee to reinstate the Services or access to the DBM Account.
e. Billing Disputes. Any claims or disputes relating to Fees under this Agreement must be sent to DBM in writing within thirty (30) days of the date of invoice or will be waived by Customer.
6. TERM AND TERMINATION
a. Term and Renewal. This Agreement will remain in full force and effect while Customer uses the Services.
i. Self Service. If Customer elects to use Self-Service, this Agreement is effective unless and until terminated by either Customer or DBM. Customer may terminate this Agreement at any time by providing DBM with written notice at least five (5) days before the Customer’s credit card would next be charged.
ii. Order Forms. If Customer elects to execute an Order Form(s) with DBM for Services, the "Initial Term" will be set forth in Customer’s Order Form and will automatically renew for additional, successive terms of the same duration (each a "Renewal Term" and together with the "Initial Term", the "Term") unless Customer provides notice of non-renewal at least sixty (60) days before the end of the then-current Term. The renewal pricing set forth in Customer’s Order Form will apply. If renewal pricing is not included in Customer’s Order Form, then DBM’s standard pricing available on the date of renewal will apply.
b. Termination for Cause. Either Party may terminate this Agreement for cause, as to any or all Services: (i) immediately, if the other Party fails to cure a material breach within thirty (30) days of receiving written notice from the non-breaching Party, or (ii) immediately, to the extent permissible under Applicable Law, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.
c. Suspension for Prohibited Acts. DBM may suspend Customer and its Authorized Users’ access to any or all Services, in whole or in part, without notice, if: (i) Customer or its Authorized Users are in material breach of this this Agreement; or (ii) Customer or its Authorized Users use the Services or DBM Materials in violation of Applicable Law.
d. DBM’s Changes to the Services. DBM reserves the right to change, modify, suspend, or discontinue temporarily or permanently, some or all of the Services, with respect to any or all Customers, at any time without notice. Customer agrees that DBM will not be liable to Customer for any modification, suspension, or discontinuance of the Services.
e. Post-Termination Obligations. Upon termination of this Agreement for any reason:
DBM will immediately cease providing the Services to Customer and its Authorized Users; and
Customer will within thirty (30) days, pay to DBM any Fees that have accrued prior to the effective date of termination.
7. DATA PRIVACY OBLIGATIONS
Customer agrees to comply with all Applicable Law that pertains to receiving and using the Services. Notwithstanding Section 14(d) of this Agreement, DBM may, in its sole discretion, update this Agreement and Customer’s obligations with respect to privacy in order to comply with any new laws, rules and regulations. Failure by Customer to promptly implement any requirements, including new requirements, under Applicable Law constitutes a material breach of this Agreement, and DBM may suspend or terminate the Services under this Agreement.
8. REPRESENTATIONS AND WARRANTIES
a. By Customer. Customer represents and warrants to DBM that: (i) it has the right to enter into this Agreement, grant all rights granted and perform its obligations under this Agreement; (ii) it has the right to grant DBM access to and use of its Search Account(s); (iii) Customer’s use of the Services will comply at all times with this Agreement and Applicable Law; (iv) its collection, transfer, use and disclosure of all data under this Agreement will not violate the rights of any third-party (including any End Users), Applicable Law or any statements in Customer’s online privacy notice; and (v) Customer will not attempt to reverse engineer any Technology or Services Customer has access to.
b. By DBM. DBM represents that: (i) it has the right to enter this Agreement, grant all rights granted and perform its obligations under this Agreement; and (ii) the Services will be provided substantially in accordance with industry standards. For any breach of this Section 8(b), DBM’s sole liability and Customer’s sole remedy will be re-performance of the Services by DBM or to exercise its termination rights under Section 5.
9. INDEMNIFICATION
a. Customer Indemnification. Customer will defend, indemnify, and hold harmless DBM and its officers, directors, employees and subsidiaries from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) from any claim or demand by a third-party arising out of: (i) Customer’s use of the Services and DBM Materials; (ii) Customer’s breach of this Agreement; (iii) Customer’s infringement, misappropriation or violation of Applicable Law or any third-party rights (including intellectual property, property, privacy or publicity rights); or (iv) Customer Content, or any other information provided by Customer in connection with the Services.
b. DBM Indemnification. DBM will defend, indemnify and hold harmless Customer and its officers, directors, employees, and subsidiaries from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) from any claim or demand by a third-party that the Services or DBM Materials, used in accordance with this Agreement, violates, infringes, or misappropriate any copyright, trade secret, U.S. patent or trademark rights. DBM will not have any liability under this Section 9(b) arising from: (i) unauthorized use or modifications made to the Services or DBM Materials; or (ii) the combination of the Services or DBM Materials with any third-party software, process, or service not provided by DBM. If DBM reasonably believes that the Services or DBM Materials could become subject to a third-party claim of infringement, DBM may in its sole discretion: (x) modify the Services of DBM Materials so that it no longer infringes or misappropriates; (y) obtain a license for Customer’s continued use of the affected Services or DBM Materials in accordance with this Agreement, or (z) terminate the affected Services or this Agreement upon 30 days’ prior written notice and provide a refund of any pre-paid fees applicable to any period following the effective date of termination. DBM’s indemnification obligations in this Section 9(b) will be DBM’s sole liability and Customer’s sole remedy for any claims that the Services or DBM Materials violate, infringe, or misappropriate any third-party intellectual property rights.
c. Indemnification Process. The indemnified Party will promptly notify the indemnifying Party of the claim and cooperate with the indemnifying Party in defending the claim. The indemnifying Party will have full control and authority over the defense, except that: (i) any settlement requiring the indemnified Party to admit liability or pay any amount (not covered by the indemnifying party) requires prior written consent of the indemnified Party, not to be unreasonably withheld or delayed; and (ii) the indemnified Party may join in the defense with its own counsel at its own expense.
10. LIMITATIONS OF LIABILITY
a. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS STATED IN SECTION 8, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, DBM EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM (COLLECTIVELY, "PROMISES") OF ANY KIND ABOUT THE SERVICES AND DBM MATERIALS WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, COMMON LAW OR CUSTOM AND: (A) DBM EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE, AND NON- INFRINGEMENT; AND (B) DBM MAKES NO PROMISES REGARDING THE RESULTS CUSTOMER WILL OBTAIN THROUGH THE USE OF THE SERVICES.
b. Disclaimer of Damages. DBM WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS (WHETHER DIRECT OR INDIRECT) OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF DBM IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
c. Cap on Liability. UNDER NO CIRCUMSTANCES WILL DBM’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO DBM UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
d. Basis of the Bargain. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED TO CUSTOMER, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IF ANY LIMITATION OF LIABILITY IN THIS AGREEMENT IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. CONFIDENTIALITY
Confidential Information includes all information disclosed by a party (the "Disclosing Party") to the other party (the "Receiving Party"), whether of a technical, business, or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information does not include information that: (a) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (b) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (c) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (d) is or becomes part of the public domain through no act or omission of the Receiving Party. Each Receiving Party will (i) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (ii) not disclose the Disclosing Party’s Confidential Information to a third-party unless the third-party must access the Confidential Information to perform in accordance with this Agreement and the third-party has agreed to confidentiality terms no less protective than those set forth in this Section 11; and (iii) maintain the confidentiality of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by Applicable Law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by Applicable Law) of such requirement to the Disclosing Party before such disclosure and reasonably assist the Disclosing Party, at Disclosing Party’s cost, in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 11 will survive termination of this Agreement until the expiration of three (3) years from the date of last disclosure. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act. DBM may disclose the name of Customer and existence of this Agreement as required by Applicable Law, court or regulatory order, audit or investigation.
12. RESOLVING DISPUTES.
PLEASE READ THIS SECTION CAREFULLY, AS IT INVOLVES A WAIVER OF CERTAIN RIGHTS TO BRING LEGAL PROCEEDINGS, INCLUDING AS A CLASS ACTION FOR RESIDENTS OF THE U.S.
a. Please contact DBM first! DBM wants to address Customer's concerns without resorting to formal legal proceedings. Before filing a claim, Customer agrees to try to resolve the dispute informally by contacting DBM first.
b. Venue for disputes. Customer and DBM agree that any judicial proceeding to resolve claims relating to this Agreement or the Services will be brought in the federal or state courts located in Delaware, subject to the mandatory arbitration provisions below. Customer and DBM consent to venue and personal jurisdiction in such courts. Notwithstanding the above, Customer and DBM agree that Customer alternatively may attend any arbitration proceedings telephonically or videographically, in which case DBM will do so as well.
U.S. RESIDENTS ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER:
c. Arbitration.
i. Agreement to Arbitrate. Customer and DBM agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
ii. Arbitration Procedures. The American Arbitration Association ("AAA") will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States in accordance with the venue specified in Section 12(b).
iii. Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. DBM will pay all arbitration fees for Customer on a pre-pay plan where Customer’s claim is for less than $50,000. DBM will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that Customer's claim is frivolous.
iv. Exceptions to Agreement to Arbitrate. Either Party may assert claims, if they qualify, in small claims court in New York, New York, provided that DBM agrees that Customer may choose to appear by video, and if Customer so chooses, then DBM shall appear by video as well. Either Party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If this Agreement to arbitrate is found not to apply to Customer or Customer's claim, Customer agrees to the exclusive jurisdiction of and venue in the state and federal courts located in San Francisco County, California to resolve Customer's claim.
v. Opt-Out of Agreement to Arbitrate. Customer can decline this agreement to arbitrate by sending an DBM an email within thirty (30) days of entering into this Agreement clearly stating that Customer wishes to opt out of arbitration with DBM and include Customer's name, and the name and email address associated with the DBM Account.
vi. Class Action Waiver. Both parties agree to resolve any disputes, claims, or controversies on an individual basis, and that any claims arising out of, relating to or in connection with this Agreement (such as with respect to their validity or enforceability), the DBM Materials, or the Services provided by DBM, will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.
vii. Controlling Law. This Agreement is governed by the law of the State of Delaware except for its conflicts of laws principles.
13. Non-Solicitation. During the period commencing on the Effective Date and ending five (5) years following the termination or expiration of this Agreement, the Customer shall not, without the DBM’s prior written consent, directly or indirectly; (a) solicit or encourage any person to leave the employment or other service of DBM; or (b) hire, on behalf of the Customer or any other person or entity, any person who has left the employment within the one year period following the termination of that person’s employment with the DBM. During the period commencing on the date hereof through and ending five (5) years following the termination or expiration of this Agreement, the Customer will not, whether for its own account or for the account of any other party, intentionally interfere with the relationship of the DBM with, or endeavor to entice away from the DBM, any person who during the term of the Agreement is, or during the preceding one-year period, was an officer, director, employee, or contractor, of DBM.
14. MISCELLANEOUS
a. Assignment. Customer may not assign this Agreement without the prior written consent of DBM; provided, however, Customer may assign this Agreement with prior written notice to DBM to an acquirer of all or substantially all of its assets or stock. Any other attempt to transfer or assign is void. DBM may assign this Agreement and delegate any or all its obligations hereunder. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
b. Survival. The following Sections will survive expiration or termination of this Agreement: Sections 1-4, 7-14 (as applicable).
c. Export Control Laws. The Services and DBM Materials may be subject to United States export control laws, including the U.S. Export Administration Act or other import or export regulations in other countries. Customer must comply with all such regulations and is responsible for obtaining any related licenses.
d. Amendments. Any changes or amendments to this Agreement must be mutually executed in writing by both parties.
e. Independent Parties. DBM is an independent contractor and not an agent of Customer in the performance of this Agreement. There are no third-party beneficiaries (except the indemnitees referenced herein).
f. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the Services and will supersede all prior agreements between the parties, whether written or oral. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
g. Force Majeure. DBM will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond DBM’s reasonable control.
h. Severability. If any portion of this Agreement is held invalid or unenforceable, such invalidity or enforceability will not affect the other provisions of this Agreement, which will remain in full force and effect, and the invalid or unenforceable portion will be given effect to the greatest extent possible.
i. Waiver. The failure of a Party to require performance of any provision will not affect that Party’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
j. Third-Party Website Disclaimer. Links to third-party websites from the Services do not imply endorsement by DBM of any products, services or information presented therein, nor does DBM warrant or otherwise guarantee the accuracy of the information contained on them.
k. Order of Precedence. In the event of a conflict or inconsistency between any these Terms of Service and the Order Form, the Order Form will govern.
l. Notice. Except as otherwise provided in this Agreement, all notices to DBM must be to DBM at the following email address: legal@databidmachine.com. Notices to Customer will be sent to the email address listed in its DBM Account. Notices are deemed effective when sent or posted.