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Schenectady, NY 

© 2019 TropheCase, Inc.  View our Terms of UsePrivacy PolicyCookie Policy, & COPPA Policy

TropheCase, Inc.

SAAS PURCHASE ORDER & INFLUENCER AGREEMENT 

  • Purchaser:                      

  • Contact: 

  • Influencer:

  • Phone: 

  • Address:

  • E-Mail: 

 

Services: TropheCase is a software service that is used to allow athletes to track their personal sports statistical data while showcasing their data on an innovative sports networking platform (the “Service(s)”).

   

 

Services Fees:  

Annual Basic Subscription to Services for the period [Pilot]-[Purchaser Name and Fees for Services]

Included Service Capacity, As outlined in the Statement of Work, attached hereto as Exhibit A (the “Statement of Work”).

Implementation Fee, As outlined in the Statement of Work

On-Site Support and Training, As outlined in the Statement of Work

 

Customer Support 

E-mail support@trophecase.com and phone during designated support hours, as outlined in the Statement of Work

Base Subscription Fees, Quote will be provided for full implementation to Basic Subscription or customization. 

Total Fees:

$0

Implementation Services:  TropheCase will use commercially reasonable efforts to provide Purchaser the Services described in the Statement of Work (“SOW”) attached as Exhibit A hereto, and Purchaser shall pay TropheCase the Implementation Fee in accordance with the terms herein.

 

Pilot Use: Check here__X___ if Services used during the Pilot Period will be restricted to non-productive evaluation use.  If so, then, notwithstanding anything else, in connection with such pilot/evaluation use (1) no fees will apply, except for any Pilot Use Fee specified below, (2) the Services are provided “AS IS” and no warranty obligations of TropheCase will apply, and (3) Purchaser may terminate this Agreement and all of its rights hereunder by providing TropheCase written notice thereof no less than 30 days prior to the end of the Pilot Period; otherwise, this Agreement shall continue in effect for the Initial Service Term (subject to earlier termination as provided in the Agreement).  

Pilot Period: (One Year) [Academic, if Purchaser is a school or school district] 

Fee:  $0

 

 

 

 

[SIGNATURE PAGE IMMEDIATELY FOLLOWS]

 

 

            SAAS SERVICES AGREEMENT

This SaaS Services Agreement (“Agreement”) is entered into on this [DATE](the “Effective Date”) between TropheCase, Inc., a Delaware corporation (“TropheCase”), and the Purchaser listed above (“Purchaser”).  This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions, the Statement of Work (“SOW”), attached hereto as Exhibit A, and incorporated by reference herein, and contains, among other things, warranty disclaimers, liability limitations and use limitations.  There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.  

 

 

COMPANY:

 

TropheCase Inc.

By:       ______________________________

Name:  Hunter Moffatt

Title:    CEO, (Authorized Person)

 

 

  • DATE:_____________________________

  • PURCHASER:                          

  • By:                                                                   

  • Name:                                                               

  • Title:                                                                 

 

IN WITNESS WHEREOF, the Parties have executed this Influencer Agreement as of the Effective Date.

 

  • INFLUENCER:

  • By:       ______________________________

  • Name:  ______________________________

TERMS AND CONDITIONS

 

1. AGREEMENT DOCUMENTS.

These terms and conditions set forth in this Agreement along with (i) the Terms of Use (“Terms of Use”), (ii) the Statement of Work (“SOW”), attached hereto as Exhibit A, and incorporated by reference herein, (iii) the Privacy Policies (“Privacy Policies”), and (iv) the Cookie Policy (“Cookie Policy”) (collectively, the “Agreement”), govern the purchase of all Services related to the use of the software (including all updates, revisions, error corrections, and subsequent versions to the software “Software”) as specified in the Agreement.  In the event that there is a conflict between the Terms of Use, the SOW, the Privacy Policies, or the Cookie Policy, this Agreement shall control.  The Agreement constitutes the entire agreement between TropheCase, Inc. (“TropheCase”) and the party listed on the SaaS Purchase Order (“Purchaser”) with respect to the Services for use of the Software described herein, and no other document will form a part of the Agreement unless specifically agreed to in writing by TropheCase.  Any terms contained in Purchaser’s response to, or acknowledgement or acceptance of the Agreement, if any, that are additional to, or different from, those set forth in the Agreement (which terms would constitute a counter-offer by Purchaser) are specifically rejected by TropheCase. TropheCase’s offer to sell, as provided in the Agreement, may not be modified by Purchaser counter-offers. Notwithstanding the foregoing, if the Agreement is deemed an acceptance by TropheCase of a Purchaser offer or counter-offer, then such acceptance is expressly made conditional on Purchaser’s assent to the terms of the Agreement, including any terms that are additional to, or different from, the terms of Purchaser’s offer or counter-offer. The Purchaser acknowledges and agrees to the terms of the Agreement upon making a Software inquiry and upon placement of an order for supply and upon acceptance of the Software and Services supplied and also upon receipt of the invoice or any credit thereto for payment purposes.  Each stage is a specific separate acceptance by the Purchaser in accordance with this Agreement.

2. SAAS SERVICES AND SUPPORT. 

(a) Subject to the terms of this Agreement, TropheCase will use commercially reasonable efforts to provide Purchaser the Services. As part of the registration process, TropheCase will provide an administrative user name and password for Purchaser’s account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.  (b) Subject to the terms hereof, TropheCase will provide Purchaser with reasonable technical support services in accordance with the Company’s standard practice or, as outlined in the SOW.

 

3. REPRESENTATION OF SCHOOL DISTRICTS AND SCHOOLS WITH MINORS.If Purchaser is authorizing a student under the age of 13 to use, or providing such a student with access to the Services and use of the Software, Purchaser hereby represents and warrants that such student’s parents or guardians have agreed to this Agreement on behalf of such student and that Purchaser has obtained all parental consents and permissions in connection with the access to the Services and use of the Software, and Purchaser will otherwise comply with all federal, state, and local laws (and all regulations and rules thereunder) governing such student accessing and using the Software, including, without limitation, the Children’s Online Privacy Protection Act (“COPPA”) and the Family Educational Rights and Privacy Act (“FERPA”).

 

4. FEES AND INVOICING  

(a) Purchaser will pay TropheCase the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”).  If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Purchaser shall be billed for such usage and Purchaser agrees to pay the additional fees in the manner provided herein.  Company reserves the right to change the Fees or applicable charges and to institute new charges and fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Purchaser (which may be sent by email).  (b) Terms of payment are cash net thirty (30) days from the date the Software supplied was invoiced, and the Purchaser will have no right of set off in respect of any claim against TropheCase.  (c) If Purchaser believes that TropheCase has billed Purchaser incorrectly, Purchaser must contact TropheCase no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to TropheCase’s customer support department. (d) If the Purchaser fails to pay any amount owed to TropheCase by the due date, TropheCase reserves the right to apply interest on that amount, from the date the amount should have been paid until the date the amount is paid, at the lesser of the rate of One and one-half percent (1.5%) per month (Eighteen percent (18%) per annum) or the maximum rate permitted by law.  Interest accrues daily, may be capitalized, and is payable on demand. (e) Upon request by TropheCase, the Purchaser must make all payments owed to TropheCase by means of direct debit into a bank account nominated by TropheCase and must: (i) nominate in writing to TropheCase a bank account from which TropheCase will direct debit the payments; and (ii) sign all necessary forms and consents permitting the direct debit of funds from the bank account in the manner and on the dates specified by TropheCase. TROPHECASE CANNOT AND IS NOT RESPONSIBLE FOR THE SECURITY OF YOUR ACCOUNT INFORMATION.

 

5. TAXES. All prices and amounts payable, or the value of other consideration provided in respect of the access to the use of the Software supplied in accordance with this Agreement are exclusive of any Taxes.  The Purchaser will be responsible for and will bear the cost of all Taxes incurred in connection with the sale of the access to the use of the Software, including, without limitation, any applicable federal, state and local taxes.

 

6. CONFIDENTIALITY. Purchaser acknowledges that it may gain access to or otherwise learn Confidential Information (as hereinafter defined). Purchaser agrees it will use the Confidential Information only for purposes of performing its obligations under the Agreement (the “Permitted Purpose”) and shall not transfer or otherwise disclose the Confidential Information to any third party except as expressly permitted by the Agreement. Purchaser shall: (a) give access to Confidential Information solely to those of its employees and subcontractors approved by TropheCase with a need to know such information for the Permitted Purpose; and (b) take the same security precautions to protect against disclosure or unauthorized use of Confidential Information that Purchaser takes with its own confidential information but, in no event, shall Purchaser apply less than a reasonable standard of care to prevent such disclosure or unauthorized use. "Confidential Information" means any and all information relating to TropheCase, any of its affiliates, and/or any of their respective clients that may be disclosed to or accessed by Purchaser, including, without limitation: personal records or data; trade secrets, planning or policy matters; internal policies and procedures; matters subject to attorney-client privilege; financial or accounting information; the existence or terms of the Agreement or any other agreements or communications between Purchaser and TropheCase; personally identifiable information, defined as information that can be identified to a particular person without unreasonable effort, such as names and social security numbers (“PII”); data, reports, forecasts and records; and any analyses, compilations, studies or other documents, whether prepared by Purchaser or TropheCase, which contain or otherwise reflect Confidential Information. Purchaser shall not use TropheCase’s or any of its affiliates’ names on Purchaser’s website or any publication without the prior written consent of TropheCase. 

 

7. DISCLAIMER OF WARRANTIES.  The Software is provided “AS-IS.”  TropheCase makes no commitments about the content within, or of, the Software. TropheCase further disclaims any warranty that (a) the Software will meet Purchaser’s requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Software will be effective, accurate, or reliable; (c) the quality of the Software will meet Purchaser’s expectations; or that (d) any errors or defects in the Software will be corrected.

 

TO THE MAXIMUM EXTENT PERMITTED BY LAW TROPHECASE EXCLUDESALL EXPRESS AND IMPLIED WARRANTIESAND CONDITIONS, INCLUDING THOSE OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANDNON-INFRINGEMENT.  If Purchaser’s local law does not allow the exclusion of implied warranties, then any implied warranties, guarantees, or conditions are limited as much as Purchaser’s local law allows.

 

Purchaser may not recover under any other part of the Agreement, or under any theory, any damages or remedy, including lost profits or direct, consequential, special, indirect, or incidental damages. If Purchaser’s local law allows Purchaser to recover damages from TropheCase even though this agreement does not, Purchaser cannot recover more than the greater of US $100 or the aggregate amount Purchaser paid for access to the Software during the three-month period preceding the event giving rise to the liability (or up to US $100 if Purchaser acquired the Software for no charge).

8. TERMINATION. 

(a) Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. (b) In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. (c) Termination by TropheCase: If TropheCase terminates the Agreement for reasons other than for cause, TropheCase will make a reasonable effort to notify Purchaser at least thirty (30) days prior to termination via the email address Purchaser provided with instructions on how to retrieve Purchaser’s content. We may, at any time, terminate Purchaser’s right to use and access the Services if: (i) Purchaser breaches any provision of the Agreement (or acts in a manner that clearly shows Purchaser does not intend to, or is unable to, comply with the Agreement); (ii) Purchaser fails to make the timely payment of fees for the Software, if any; (iii) TropheCase is required to do so by law (for example, where the provision of the Software to Purchaser is, or becomes, unlawful); or (iv) TropheCase elects to discontinue the Software, in whole or in part, (such as if it becomes impractical for TropheCase to continue offering Software in Purchaser’s region due to change of law).  

 

9. ASSIGNMENT. Purchaser may not assign or otherwise transfer the Agreement or your rights and obligations under the Agreement, in whole or in part, without TropheCase’s written consent and any such attempt will be null and void. TropheCase may transfer its rights under these terms to a third party.

 

10. INDEPENDENT CONTRACTOR. TropheCase and Purchaser are independent contractors and nothing in this Agreement shall be construed as establishing an employee/employer or other agency relationship, partnership or joint venture between them. 

 

11. PURCHASER REPRESENTATIONS AND WARRANTIES.  Purchaser represents and warrants that Purchaser is located in the United States and that the Software will be used in the United States.  Purchaser further represents and warrants that, to the extent Purchaser will make the Software accessible to users under the age of 13, Purchaser has fully complied with COPPA, as set forth in Section 3 of this Agreement. 

 

12. FORCE MAJEURE. TropheCase shall not be responsible for failures to fulfill its obligations under this Agreement due to causes beyond its control.

 

13. GOVERNING LAW AND VENUE. This Agreement will be construed and interpreted under the laws of the State of Delaware, without regard to any conflict of law provision which may cause the application of any law other than the internal laws of the State of Delaware, and both parties further consent to the jurisdiction of, and venue in, any state courts sitting in the County of Albany in the State of New York.

 

14. ARBITRATION.  Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties hereby agree to use one (1) arbitrator. The place of arbitration will be Albany, New York, United States of America.

 

Notwithstanding the foregoing, in the event of Purchaser’s or others’ unauthorized access to or use of the Software or content in violation of the Agreement Purchaser agrees that TropheCase is entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

 

15. NOTICES. All notices required under this Agreement will be in writing to the addresses shown on the face of the PO. Notices hereunder will be deemed given when delivered personally to an authorized representative or one day after deposit for overnight delivery upon verification of receipt.

 

16. ENFORCEMENT COSTS. The Purchaser shall pay to TropheCase upon demand all costs and expenses (including, without limitation, all court costs, attorneys’ fees and expenses) that TropheCase may incur in connection with the enforcement of TropheCase’s rights under the Agreement.

 

17. SURVIVAL. The provisions of these Terms which by their nature survive termination or expiration of the Agreement, including without limitation the provisions regarding treatment of Confidential Information and limits of liability, shall survive such termination or expiration. 

 

18. SOFTWARE LICENSE GRANT; RESTRICTIONS.TropheCase grants Purchaser a license to use the Software in accordance with the Terms of Use, Privacy Policies, and Cookie Policy.  Purchaser will not modify, decompile, disassemble, unbundle or reverse engineer any portion of the Software to intentionally attempt to discover any underlying ideas or algorithms of the Software. In addition, Purchaser will not (a) rent, sell or lease the Software; or (b) remove any proprietary notices, labels or marks on or in any copy of the Software or associated documentation. c) Purchaser shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Purchaser shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Purchaser account or the Equipment with or without Purchaser’s knowledge or consent. All Software shall be delivered electronically.

 

19. TITLE TO SOFTWARE. As between TropheCase and Purchaser, TropheCase retains title and intellectual property rights to the Software provided hereunder and does not convey any proprietary interest therein to Purchaser other than the license as specified in the Agreement. Notwithstanding anything to the contrary contained herein, as between Purchaser and TropheCase, all right, title, and interest in and to the following shall vest in TropheCase and shall be the sole and exclusive property of TropheCase, and TropheCase does not convey any proprietary interest therein to Purchaser: (a) any data used in combination with the Software; (b) all output derived from the use of the Software; and (c) any additional computer programs which Purchaser creates to operate in combination with the Software for purposes of, including but not limited to, interoperability with TropheCase technology and/or software and/or the creation of application programming interfaces. TropheCase reserves all rights not granted under the Agreement.

 

20. WAIVER.  The waiver by either party of any of its rights or remedies or of any breaches by the other party under the Agreement in a particular instance shall not be considered as a waiver of the same or different rights, remedies or breaches in subsequent instances.  No modification or waiver of any provision of the Agreement shall be effective unless made in writing and signed by the parties.

 

21. SEVERABILITY. In case one or more of the provisions contained in the Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions contained in the Agreement will not be affected or impaired thereby.

 

 

Exhibit A (the “Statement of Work”)

  1. Early adopters who want to grow with us. Joining us in our vision to build a trusted sports community. 

  2. Endorse TROPHECASE

  3. Feedback to help us grow together and enhance your user experience.  We want to hear, what you need, how we can improve, how we can provide you more value based on your specific needs.

  4. Implementation of 75% of your defined audience/reach in the next 3 months.

  5. Follow and share us on your social media

 

 

INFLUENCER AGREEMENT

 

                  THIS INFLUENCER AGREEMENT(this “Agreement”) is made and entered into as of [DATE](the “Effective Date”) by and between TropheCase Inc. (the “Company”) a Delaware Corporation with an address for business at [Address] and [Influencer Name] (the “Influencer”) an individual person, with an address for business at [Address]. Company and Influencer may be referred to herein, individually, as a “Party” and, collectively, as the “Parties.”

                  WHEREAS, the Influencer desires to market the Company to prospective users. 

WHEREAS, the Company requests the Influencer perform services for it and may request the Influencer to perform other services in the future; 

                  WHEREAS, the Company and the Influencer desire to enter into an agreement, which will define respective rights and duties as to all services to be performed.

                  NOW, THEREFORE, in consideration of the covenants and agreements contained herein, together with other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

1.0             Scope of Appointment. Subject to the terms and conditions of this Agreement, Company appoints Influencer, and Influencer accepts such appointment and agrees to act as one of Company’s non-exclusive Influencers to endorse and promote the Company to prospective users. 

2.0             Services.  Beginning on the Effective Date and remaining in effect for the duration of this Agreement, the Influencer shall furnish the Company with promotional services (as more fully set forth in the “Schedule of Services” attached hereto as Appendix Aand made a part hereof).

 

3.0             Non-Exclusivity. Company’s appointment of Influencer in Section 1.0 of this Agreement is a non-exclusive appointment to perform the Services.  Company may independently perform the Services or appoint additional Influencers.

 

4.0             Term.  The Term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until [One Year] or otherwise terminated by the parties pursuant to Section 5.0 hereunder (the “Term”).  Notwithstanding the foregoing, the Parties may mutually agree to extend the Term.

 

5.0             Termination.  This Agreement may be terminated by Company with written notice to Influencer at will (“Termination”). Termination of the Agreement, for any reason, shall not relieve either Party of any obligation arising out of this entire Agreement accruing prior to such termination and shall be without prejudice to rights and remedies arising from any breach of default.  

 

6.0             Compensation.  The work performed by Influencer shall be compensated according to the compensation plan as set forth in Appendix B, and shall not exceed the total amount specified in Appendix B.

                  7.1             Influencer is fully authorized and empowered to enter into this Agreement, and that his or her performance of the obligations under this Agreement will not violate any agreement between the Influencer and any other person, firm, or organization or any law or governmental regulation.

 

                  7.2             Influencer will, in good faith, attempt to notify the Company of any change(s) to the Influencer’s schedule that could adversely affect the availability of the Influencer, whether known or unknown at the time of this Agreement, no later than two (2) weeks prior to such change(s).  If the Influencer becomes aware of such change(s) within the two (2) week period, the Influencer shall promptly notify the Company of such change(s) within a reasonable amount of time.

 

                  7.3             Influencer will bear all expenses incurred in the performance of this Agreement.​

 

                  8.1             The Company is fully authorized and empowered to enter into this Agreement, and that its performance of the obligations under this Agreement will not violate any agreement between the Company and any other person, firm, or organization or any law or governmental regulation.

 

                  8.2             That the Company is in full compliance with any and all laws and/or statutes applicable to the services described hereunder.​​​

                  

                  10.1           The Influencer shall be an Independent Contractor of the Company only. Nothing contained in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.

 

                  10.2           The Influencer shall have no authority to act as agent for, or on behalf of, the Company, or to represent the Company, or bind the Company in any manner.

 

                  10.3           The Influencer shall not be entitled to worker’s compensation, retirement, insurance, or other benefits afforded to employees of the Company.

                  11.3           Confidential Information.  Influencer will not use or disclose anything assigned to the Company hereunder or any other technical or business information or plans of the Company, except to the extent Influencer (a) can document that it is generally available (through no fault of Influencer) for use and disclosure by the public without any charge, license, or restriction, or (b) is permitted to use or disclose such information or plans pursuant to a written authorization approved and executed by the Company prior to such disclosure.   Influencer recognizes and agrees that there is no adequate remedy at law for a breach of this Section 11.3, that such a breach would irreparably harm the Company and that the Company is entitled to equitable relief (including, without limitation, injunctions) with respect to any such breach or potential breach in addition to any other remedies.

 

                  11.4           Maintenance of Privacy; Data Breaches.  Influencer acknowledges that maintaining the security, privacy and integrity of confidential information, user and other proprietary data is of the utmost importance.  Influencer expressly agrees to protect the privacy and safety of both user and other proprietary data and information provided in connection with this Agreement and the Services hereunder.  Influencer shall take active steps to safeguard and protect such confidential information, user and proprietary data / information from unauthorized access, misappropriation or malicious attack (each a “Data Breach”) by commercially acceptable means.

 

12.0           Liability.  The Company shall not be responsible for any costs incurred by the Influencer, including, without limitation, any and all fees and expenses, such as those described in Section 7.3 above. 

 

13.0           Indemnification.  The Influencer agrees to indemnify, defend, and hold harmless the Company, its affiliates, and its respective officers, directors, members, managers, agents, representatives, and employees (each an “Indemnitee” and, collectively, the “Indemnitees”) from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, arising out of, or relating to, the Influencer’s services under this Agreement.  Without limiting the generality of the foregoing, Influencer shall specifically indemnify, defend, and hold harmless the Indemnitees arising form, or in connection with, any tax and withholding obligations of the Influencer and any such obligations together with wages and compensation obligations with respect to the employees or any permitted sub-contractor of Inter.  These indemnification provisions shall survive the expiration or earlier termination of this Agreement. 

 

14.0           Material Disclosures and Compliance with FTC Guidelines.  Influencer will abide by the Federal Trade Commission (“FTC”)Guides Concerning the Use of Endorsements and Testimonials in advertising as the same may be amended, from time to time, when publishing content on behalf of the Company. Influencer will assure that any advertisement disclosure will be clear and prominent and made in close proximity to any statements the Influencer makes about the Company or any Company product. 

 

15.0           General Provisions.

 

                  15.1           Entire Agreement.  This Agreement including any schedules, appendices, and exhibits hereto, contains the entire agreement and understanding among the Parties with respect to the subject matter hereof and supersedes all prior agreements, proposals, representations, arrangements or understandings, written or oral, with respect to such subject matter.  There are no representations, agreements, arrangements or understandings, oral or written, between or among the Parties relating to the subject matter of this Agreement that are not fully expressed herein.  The preamble and the recitals set forth in the beginning of this Agreement are incorporated by reference hereby as if fully set forth herein.  

 

                  15.2           Binding Effect.  This Agreement shall be binding upon and inure to the benefit of the Parties hereto, and each of their respective successors, heirs, and assigns.

 

                  15.3           Amendment and Waiver.  No course of performance or other conduct subsequently pursued or acquiesced in, and no oral agreement or representation subsequently made, by the Parties, whether or not relied or acted upon, and no usage of trade, whether or not relied or acted upon, shall amend this Agreement or impair or otherwise affect any Party's obligations pursuant to this Agreement or any rights and remedies of a Party pursuant to this Agreement. This Agreement may be amended or modified, from time to time, only by a written instrument expressly referring to this Agreement adopted by all of the Parties. No failure of a Party to exercise, and no delay by a Party in exercising, any right or remedy under this Agreement shall constitute a waiver of such right or remedy.  No waiver by a Party of any such right or remedy under this Agreement shall be effective unless made in a writing duly executed by such waiving Party and specifically referring to each such right or remedy being waived.

 

                  15.4           Notices. Any notice, demand or other communication required or permitted to be given pursuant to this Agreement shall have been sufficiently given for all purposes if: 

 

(a)             delivered personally to the Party or to an executive officer of the party to whom such notice, demand or other communication is directed; or

(b)             sent by registered or certified mail, postage prepaid, addressed to the receiving Party at his, her or its address set forth in this Agreement. 

 

                  Except as otherwise provided in this Agreement, any such notice shall be deemed to be given three (3) business days after the date on which it was deposited in a regularly maintained receptacle for the deposit of United States mail, addressed and sent as set forth in this Section.

 

                  15.5           Construction and Interpretation.  The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. The schedules and exhibits hereto are expressly incorporated herein by reference, and shall be deemed, and shall construed and interpreted, as part hereof. Unless the context of this Agreement clearly requires otherwise: 

 

(a)             references to the plural include the singular, the singular the plural, and the part the whole, 

 

(b)             references to one gender include all genders and the neuter form, 

 

(c)             “or” has the inclusive meaning frequently identified with the phrase “and/or,” 

 

(d)             “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation;” and 

 

(e)             references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. 

 

(f)             any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as the same may have been, or may from time to time be, amended, restated, revised, modified, supplemented, reenacted or succeeded.

 

                  15.6           Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law.  If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without such provision, and this Agreement shall be construed to the fullest extent possible as to give effect to the intentions of the provisions found to be unenforceable or invalid.  The Parties agree that such court may reform such provisions so that it is reasonable under the circumstances and that such provision, as reformed, shall be enforceable, except that the material intent of the Parties in entering into this Agreement shall not be defeated or rendered impossible by the removal of such provision from this Agreement.

 

                  15.7           Interpretation. Influencer acknowledges and represents that he, she, or it, has been advised to seek, and has sought, the advice of independent counsel with respect to the subject matter hereof. The Parties acknowledge, understand, represent and agree that the terms and conditions of this Agreement are the result of their mutual negotiation and, as such, no provision shall be more strictly construed against a Party on the basis that such Party was responsible for drafting the provision.

 

                  15.8           Choice of Law and Venue; Jury Trial Waiver.  The Parties expressly agree that all the terms and provisions hereof shall be constructed under applicable U.S. federal copyright, trademark and other intellectual property laws, rules and regulations together (as applicable) with the internal laws of the State of Delaware without regard such state’s conflict of laws or choice of law rules and principles. Each of the Parties hereby expressly and irrevocably consents that any action or proceeding relating to this Agreement shall be brought, at the option of the party instituting the action or proceeding, in any state court of general jurisdiction in Albany County, State of New York.  With respect to all such actions or proceedings commenced in connection with this Agreement each Party hereby expressly andIRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY.

 

                  15.9           Enforcement Costs; Attorneys’ Fees.  The prevailing party in any action to enforce this Agreement shall be entitled to recover costs and expenses including, without limitation, attorneys' fees.

 

                  15.10         Confidentiality of Terms.  The terms of this Agreement are confidential to the Company and its successors and assigns.  Influencer shall not make any press release or other written or oral disclosure of any nature regarding the existence, terms and provisions (including, without limitation, compensation terms) of this Agreement without the prior written approval of Company or, as the case may be, the successors and assigns thereof; provided, however, approval for such disclosure shall be deemed given to the extent such disclosure is required to comply with governmental rules.  

 

                  15.11         Further Actions.  The Parties agree to execute, acknowledge and deliver such additional documents, and take such further actions as may reasonably be required, from time to time, to carry out each of the provisions and the intent of this Agreement, and every agreement or document relating thereto, or entered into connection herewith.

 

                  15.12         Counterparts.  This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, shall be deemed to constitute one and the same document. This Agreement may be executed and delivered by customary or other commercially acceptable electronic means (including DocuSign or similar service, or any other electronic signature complying with the U.S. federal ESIGN Act of 2000, as the same may be amended, from time to time); a manual or electronic signature so affixed to this Agreement whose image shall have been transmitted via facsimile, e-mail or other customary electronic means shall have the same force and effect as original ink signature for all purposes.

 

                                                                                                            

Appendix A

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