PLEASE READ THE FOLLOWING PLATFORM SERVICES AGREEMENT (THE “PLATFORM SERVICES AGREEMENT”), WHICH ALONG WITH THE ORDER FORM (AS DEFINED BELOW) AND ANY SUPPLEMENTAL TERMS THAT MAY BE PRESENTED FOR REVIEW AND ACCEPTANCE (COLLECTIVELY, INCLUDING THE PLATFORM SERVICES AGREEMENT, THIS “AGREEMENT”) CONSTITUTES THE AGREEMENT BETWEEN THE ENTITY SUBSCRIBING TO USE THE PLATFORM (AS DEFINED BELOW) ( “CUSTOMER”), AND SCOPE3 PBC, A DELAWARE PUBLIC BENEFIT CORPORATION (“SCOPE3”). EACH OF CUSTOMER AND SCOPE3 ARE INDIVIDUALLY REFERRED TO HEREIN AS A “PARTY” AND TOGETHER AS THE “PARTIES”.
BY EXECUTING THE ORDER FORM OR CHECKING A BOX AGREEING TO THE PLATFORM SERVICES AGREEMENT, THE PERSON EXECUTING THE ORDER FORM OR CHECKING SUCH BOX IS (I) ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER, (II) AGREEING THAT CUSTOMER IS BOUND BY THIS AGREEMENT, AND (III) REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND TO BIND CUSTOMER. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT AGREE TO THE PLATFORM SERVICES AGREEMENT OR OTHERWISE ACCESS AND/OR USE THE PLATFORM.
1.1 Scope3 Emissions Model; Platform Access. Scope3 has developed a proprietary emissions model that assists with, among other things, producing carbon emissions estimates for the media and advertising industry (the “Emissions Model”). Customer wishes to access certain data generated or otherwise informed by the Emissions Model or otherwise provided by Scope3 through the Platform (collectively, the “Platform Output”) through Scope3’s online platform (the “Platform”, and together with the Emissions Model and the Platform Output, the “Scope3 IP”). Subject to the terms and conditions of this Agreement, Scope3 hereby grants to Customer the right to access and use the Platform. Customer will only access the Platform in a manner consistent with (a) the package and/or plan (the “Package”) selected by Customer (i) in the order form executed by Customer that incorporates by reference the Platform Services Agreement or (ii) via the online menu (either at initial sign-in, or within the Platform after sign-on) pursuant to which Customer subscribes to the Platform (such order form or menu, the “Order Form”) and (b) any documentation made available by Scope3 that is associated with the Package and/or Platform features included therein. For the avoidance of doubt, if Customer initially signs in and accesses the free Package (thereby constituting an Order Form for the free Package governed by this Platform Services Agreement, subject to Section 1.5), Customer may subsequently select a paid Package within the Platform which shall constitute a new Order Form governed by this Platform Services Agreement for the paid Package. Customer will also comply with the Green Media Standard for Media Products Policy located at https://scope3.com/agreements/green-media-standards-adherence-policy/v1-0 and the Verified Partner Policy located at https://scope3.com/agreements/verified-partner-policy/v1-0. The terms of the Green Media Policy and Verified Partner Policy are hereby incorporated herein by this reference.
1.2 Platform Output. Subject to the terms and conditions of this Agreement, Scope3 hereby grants to Customer a non-exclusive, non-transferable license and right to use the Platform Output in a manner consistent with the Package selected by Customer, which may include: (a) with respect to Platform Output that is specific to Customer’s organization, properties or products (including comparisons against Scope3 benchmarks), for any lawful business purposes, including disclosing such Platform Output to third parties; (b) with respect to Platform Output consisting of targeting and optimization data, internally for targeting and optimization of Customer’s own media, including in connection with developing campaigns, line items and programmatic marketplaces on behalf of Customer’s direct customers; and (c) with respect to Platform Output consisting of media reporting data, for the purposes of preparing and providing post-campaign reporting to Customer’s direct customers. Customer may also incorporate Platform Output, in a manner and format mutually agreed upon in advance by both parties in each case, to its client-facing dashboards, platform and reports, subject to the Package selected by Customer.
1.3 Restrictions; No Implied Licenses. Customer will not (and will not allow any third party to): (a) install, download, distribute or otherwise use the Scope3 IP other than as expressly set forth in this Agreement or the Order Form; (b) use the Scope3 IP for any illegal or harmful purposes, including use of the Scope3 IP in a manner that disparages or otherwise harms the reputation or business of Scope3; (c) use the Scope3 IP in any manner that competes with Scope3 or in connection with developing any product or service that competes with Scope3’s products or services; (d) use the Scope3 IP in any manner that violates the rights of any person, including but not limited to intellectual property rights, rights of privacy or rights of publicity; (e) unless otherwise permitted under Section 1.2 or in the Order Form, create any derivative works containing or utilizing any of the Platform Output; (f) unless otherwise permitted under Section 1.2 or in the Order Form, publish, export, post or distribute any of the Platform Output, or place any of the Platform Output onto a server so that it is accessible via a public network such as the Internet; (g) scrape the Platform or otherwise use electronic means to locate, sort and/or extract Platform Output (excluding any features of the Platform itself that Scope3 makes available); (h) make any marketing claims based on the Platform Output unless agreed in writing by Scope3; (i) disclose or otherwise provide any of Customer’s Platform credentials to any third party or otherwise permit any third party to access the Platform; (j) unless otherwise permitted under Section 1.2 or in the Order Form, copy, rent, lease, sell, resell, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the Scope3 IP; (k) violate the Green Media Policy or Verified Partner Policy; (l) use the Platform Output in connection with any personal information; (m) use the Platform Output to create any audience segment, including any cookie pools, user lists, IP address lists, device ID lists or any other form of user or browser identification; or (n) use the Platform Output for retargeting any user or household or for building profiles of users or households or for re-identifying any users. Customer acknowledges and agrees that this Agreement in no way will be construed to provide to Customer, or any third party, any express or implied right or license to access, use, copy or otherwise exploit the Scope3 IP or any portion thereof (including any intellectual property embodied therein), except as expressly set forth in Sections 1.1 and 1.2.
1.4 Customer Data. Depending on the applicable Package, Customer may provide, upload or otherwise input data via the Platform (“Customer Data”). Customer hereby grants Scope3 a non-exclusive, non-sublicensable (except to contractors, consultants and service providers performing services on behalf of Scope3), non-transferable (except as set forth in Section 8.2) license and right to use the Customer Data in accordance with the Customer Data Use Policy located at https://scope3.com/agreements/customer-data-use-policy/v1-0, which is hereby incorporated by reference herein. Customer will not include any personal information in the Customer Data. Customer is solely responsible for the accuracy of all Customer Data, and Customer will promptly provide to Scope3 updated Customer Data if any previously provided Customer Data is not accurate or becomes inaccurate. Scope3 has no liability whatsoever for errors and omissions in the Customer Data.
1.5 Free Services. Customer may initially sign in and access certain aspects of the Platform and Platform Output at no charge. In addition, from time to time, Customer may be permitted to use the Platform or Platform Output, or certain features associated therewith, at no charge for a free trial or evaluation (such initial free Platform access and such trial or evaluation access, collectively, “Free Services”). Free Services will be designated as beta, pilot, evaluation, free, trial, limited release or the like. Free Services are for Customer’s internal purposes only and, notwithstanding anything to the contrary set forth herein, are provided “as is” without warranty or indemnity of any kind, and may be subject to additional terms. Free Services may be subject to a limited period of time, in which case Customer will no longer be able to access the Free Services (without paying additional fees) upon the expiration of such period. In addition, Scope3 may discontinue Free Services at any time in its sole discretion and may never make them generally available. Scope3 will have no liability for any harm or damage arising out of or in connection with any Free Services. If Customer is solely accessing Free Services under this Agreement, Scope3 may terminate this Agreement at any time without prior notice.
2.1 Reservation of Rights. The Parties acknowledge and agree that, as between the Parties, Scope3 will exclusively own the Scope3 IP. Except for the rights and licenses expressly granted hereunder to the Platform and Platform Output, all rights, title and interests in and to the Scope3 IP are retained by Scope3 and its licensors. The Parties acknowledge and agree that, as between the Parties, Customer will exclusively own the Customer Data. Except for the rights and licenses expressly granted hereunder to the Customer Data, all rights, title and interests in and to the Customer Data are retained by Customer and its licensors.
2.2 Definitions. For purposes of this Agreement, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective licensees, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Without limiting the foregoing, the fees, pricing and payment terms set forth in the Order Form are Scope3’s Confidential Information. Unless otherwise permitted under Section 1.2, the Order Form or the Customer Data Use Policy, (a) the Platform Output is the Confidential Information of Scope3 and (b) the Customer Data is the Confidential Information of Customer. Information will not be deemed “Confidential Information” if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party.
2.3 Non-Use and Non-Disclosure Obligations. Each Party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of the Disclosing Party, and the Receiving Party agrees that it will use the Confidential Information of the Disclosing Party solely to perform its obligations or exercise its rights under this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder. Nothing in this Section 2.3 is intended to restrict or otherwise limit the exercise by a Party of the rights and licenses granted to it under this Agreement; provided that such Party uses reasonable measures to protect the confidentiality and value of the other Party’s Confidential Information. Notwithstanding any provision of this Agreement, each Receiving Party may disclose the Confidential Information of the Disclosing Party, in whole or in part, (a) to its employees, officers, directors, attorneys, auditors, financial advisors and/or contractors who have a need to know and are legally bound by a written agreement (or in the case of professional advisors, ethical duties) to keep such information confidential in a manner consistent with those of this Agreement; and (b) as reasonably deemed by a Party to be required by law (in which case each Party will provide the other with prior written notification thereof, will provide such Party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 2.3, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the expiration or termination of this Agreement, each Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information of the Disclosing Party (at the Disclosing Party’s election) that is in the possession of the Receiving Party.
3.1 Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties; and (d) it will perform its obligations under this Agreement in accordance with all applicable laws, rules and regulations. In addition, Scope3 represents and warrants to Customer that Scope3 has all rights, permissions and consents necessary to grant to Customer the rights and licenses granted to Customer herein and Customer represents and warrants to Scope3 that Customer has all rights, permissions and consents necessary to grant to Scope3 the rights and licenses granted to Scope3 herein.
3.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM AND PLATFORM OUTPUT ARE PROVIDED ON AN “AS-IS” BASIS AND SCOPE3 EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL SCOPE3 HAVE ANY LIABILITY ARISING FROM THE UNAUTHORIZED USE OF THE SCOPE3 IP, OR INFORMATION DERIVED THEREFROM. CUSTOMER ACKNOWLEDGES THAT SCOPE3 DOES NOT WARRANT THAT THE PLATFORM OR THE PLATFORM OUTPUT WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES. SCOPE3 DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE PLATFORM OUTPUT, AND CUSTOMER AGREES THAT SCOPE3 WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY ADVERSE CONSEQUENCES ARISING AS A RESULT OF THE INACCURACY OR INCOMPLETENESS OF THE PLATFORM OUTPUT. CUSTOMER FURTHER AGREES THAT SCOPE3 WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DECISIONS MADE IN RELIANCE ON THE PLATFORM OUTPUT.
4.1 Fees. Customer will pay to Scope3 the amounts set forth in the Order Form in accordance with the payment terms set forth herein and therein. All billed or invoiced amounts shall be non-cancelable and all payments made shall be non-refundable. Unless otherwise set forth in the Order Form:
4.1a Net Settlement Date and Late Fees. Payment of all billed or invoiced amounts is required within thirty (30) days of such amounts becoming due and payable (the "Net Settlement Date"). If Scope3 has not received valid payment by Customer of any fees (including any reimbursement of expenses) on or before the Net Settlement Date, a late fee will accrue at the rate of the lesser of one and one half percent (1.5%) per month on the cumulative outstanding unpaid balance (non-compounding) or the highest legal rate permitted by law;
4.1b Subscription and Minimum Activity Fees. Any subscription fees or minimum activity fees set forth in an Order Form shall be due and billable to Customer by Scope3 monthly in advance;
4.1c Activity-Based Fees. Any activity-based fees, including revenue-sharing fees, set forth in an Order Form shall be due and billable to Customer by Scope3 as of the last calendar day of the month associated with Customer's usage or resale of any Platform Output or Customer Data (including partial calendar months) during the Term, without regard to or adjustment for the date of Customer's delivery to Scope3 of any Required Billing Data (as defined below); and
4.1d Payment Method Accuracy and Authorization. If Customer provides information regarding a payment method to enable recurring charges (e.g., via credit card or ACH), Customer represents and warrants that such information is accurate and complete and that Scope3 is authorized to charge such payment method in accordance with the applicable Package and the terms and conditions pertaining thereto in the Order Form.
4.2 Required Billing Data. In some cases, certain Customer Data (such as usage data or net revenues data) may be required to be provided by Customer to Scope3 for the purposes of computing the fees due and payable to Scope3 under this Agreement (hereafter the “Required Billing Data”). In such cases, Customer agrees to provide the Required Billing Data in a format acceptable to Scope3 promptly after the end of each calendar month during the Term (including partial calendar months). Documentation for the minimum Required Billing Data fields are maintained and available publicly at https://docs.scope3.com/docs/usage. For the avoidance of doubt, fees remain earned, due, and payable to Scope3 by the Net Settlement Date regardless of the date Customer delivers the Required Billing Data to Scope3; late fees may accrue resulting from a delay or failure of Customer to provide the Required Billing Data. If Customer fails to provide the Required Billing Data in a format acceptable to Scope3 within sixty (60) days of the end of any calendar month during the Term, Scope3 reserves the right to suspend Customer’s access to the Platform Output upon written notice until remedied by Customer. For the avoidance of doubt, such a suspension does not supersede, limit, or otherwise modify any other rights or obligations of the Parties provided by this Agreement.
4.3 Audit Right and Net Adjustments. If Customer provides to Scope3 any Required Billing Data, Customer grants to Scope3 the right to audit, at its own cost, on a reasonable basis, and no more than one (1) time per calendar year, Customer’s supporting data and records for the purposes of verifying the accuracy of the submitted Required Billing Data and Customer’s compliance with the terms of this Agreement and any Order Form. If a discrepancy of five percent (5.0%) or greater is identified, Customer will become liable for the reasonable audit costs incurred by Scope3. Any net adjustments to the cumulative fees, including late fees, payable by Customer to Scope3 resulting from Customer’s own resubmission of corrected Required Billing Data, corrections to Required Billing Data resulting from audit findings, or Customer’s own late submission of the Required Billing Data, shall be included as an adjustment on Customer’s subsequent invoice or billed separately.
4.4 Taxes. All amounts payable by Customer to Scope3 under this Agreement are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know how payments, customs, privilege, excise, sales, use, value added and property taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Scope3. Customer will not withhold any Taxes from any amounts due Scope3.
4.5 Currency. Unless otherwise specified in the Order Form, all references to revenue, currency, monetary values and dollars set forth in this Agreement and the Order Form shall be in United States dollars and all payments hereunder shall be made in United States dollars. The exchange rate for any fees in a different currency than the billing currency shall be converted to the billing currency on the last business day of the reporting period based on the published exchange rate exclusive of any fees or margins.
5.1 Customer Indemnification. In the event of a third party claim against Scope3 arising from (a) Customer’s use of the Platform or Platform Output in breach of this Agreement or (b) Scope3’s use of any Customer Data as permitted hereunder, Customer will, at its expense, defend such claim, and pay damages actually awarded or paid in connection therewith, including reasonable attorneys’ fees, provided that (i) Scope3 will promptly notify Customer of such claim (provided that failure to so notify will not affect Customer’s obligations except to the extent it is materially prejudiced thereby), (ii) Customer will have the sole and exclusive authority to defend and/or settle any such claim at its own expense (with Scope3 having the right to participate in the defense with counsel of its own choosing, at its own expense) and (iii) Scope3 reasonably cooperates with Customer in connection therewith at Customer’s cost and expense. Notwithstanding anything to the contrary herein, Customer will not settle any such indemnifiable claim without Scope3’s prior written consent, not to be unreasonably withheld, conditioned or delayed.
5.2 Scope3 Indemnification. In the event of a third party claim against Customer alleging the infringement or misappropriation of any third party patent, copyright, trade secret or other intellectual property right by reason of Customer’s use of the Platform or Platform Output in accordance with this Agreement, Scope3 will, at its expense, defend such claim, and pay damages actually awarded or paid in connection therewith, including reasonable attorneys’ fees, provided that (a) Customer will promptly notify Scope3 of such claim (provided that failure to so notify will not affect Scope3’s obligations except to the extent it is materially prejudiced thereby), (b) Scope3 will have the sole and exclusive authority to defend and/or settle any such claim (with Customer having the right to participate in the defense with counsel of its own choosing, at its own expense) and (c) Customer reasonably cooperates with Scope3 in connection therewith at Scope3’s cost and expense. Notwithstanding anything to the contrary herein, Scope3 will not settle any such indemnifiable claim without Customer’s prior written consent, not to be unreasonably withheld, conditioned or delayed. If the use of the Platform or Platform Output by Customer has become, or in Scope3’s opinion is likely to become, the subject of any claim of infringement, Scope3 may (in addition to its defense and indemnification obligations above) at its option and expense (i) procure for Customer the right to continue using the Platform and Platform Output, as set forth hereunder; (ii) replace or modify the Platform or Platform Output to make it non-infringing without loss of material features or functionality; (iii) substitute an equivalent for the Platform or Platform Output, or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement and provide Customer with a pro rata refund of any prepaid, unused fees hereunder. Scope3 will have no liability or obligation under this Section 5.2 with respect to any claim if such claim is caused in whole or in part by (A) modification of any Scope3 IP by any party other than Scope3 without Scope3’s express consent, (B) unauthorized or improper use of any Scope3 IP or (C) combination of any Scope3 IP with any data, materials or other intellectual property not owned by Scope3. THIS SECTION 5 STATES SCOPE3’S ENTIRE AND EXCLUSIVE LIABILITY AND OBLIGATION, AND CUSTOMER’S EXCLUSIVE REMEDY (AT LAW OR IN EQUITY), WHETHER STATUTORY, CONTRACTUAL, EXPRESS, IMPLIED OR OTHERWISE, FOR ANY CLAIM OF ANY NATURE RELATED TO INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY.
EXCEPT FOR LIABILITY ARISING FROM THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 5 OR A BREACH OF SECTIONS 1.3 OR 2, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 5 OR A BREACH OF SECTIONS 1.3 or 2, NEITHER PARTY WILL BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID AND PAYABLE BY CUSTOMER TO SCOPE3 UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
7.1 Term. This Agreement will commence on the Effective Date (as defined below) and, unless earlier terminated as permitted hereunder, will continue for the initial term set forth in the Order Form (the “Initial Term”), or if Customer is using Free Services, the term will be subject to Section 1.5 above. Thereafter, unless earlier terminated as permitted hereunder, this Agreement will automatically renew for terms equal to the duration of the Initial Term, unless either party provides written notice of non-renewal to the other party at least sixty (60) days’ prior to the end of the then-current term (each, a “Renewal Term”, and together with the Initial Term, the “Term”). For purposes of this Agreement, the “Effective Date” means the date the Order Form is executed or otherwise agreed (e.g. by checking a box agreeing to this Platform Services Agreement online). For the avoidance of doubt, if Customer upgrades its subscription (e.g., from a Free Service to a paid subscription) by executing or otherwise agreeing to a new Order Form, such new Order Form together with the Platform Services Agreement will form a new separate agreement, with a new effective date, with respect to the subject matter thereof.
7.2 Termination. Each Party may terminate this Agreement upon written notice to the other Party in the event such other Party commits any material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
7.3 Obligations on Termination. Upon termination or expiration of this Agreement, (a) all rights granted hereunder to the Platform and Platform Output will immediately terminate unless otherwise expressly contemplated herein and Customer will immediately cease use of the Platform and Platform Output and (b) Scope3 will treat any Customer Data in its possession in accordance with the Customer Data Use Policy. Sections 1.3, 1.4 (to the extent expressly permitted pursuant to the Customer Data Use Policy), 2, 3.2 and 4 through 8 (inclusive) will survive the termination or expiration of this Agreement for any reason whatsoever.
8.1 Export Laws. Customer will not transfer, either directly or indirectly, any of the Scope3 IP, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and will otherwise comply with all other applicable import and export laws, rules and regulations.
8.2 No Assignment. Neither Party may assign this Agreement without the prior written consent of the non-assigning Party. Notwithstanding the foregoing, either Party may assign this Agreement without such consent to an affiliate or to a successor that acquires all or substantially all of the assets or business of the assigning Party to which this Agreement relates, whether by merger or purchase. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing will be null and void.
8.3 Amendment; Waiver. This Agreement may not be amended, waived or modified, in whole or part, except by a writing signed by duly authorized representative of both Parties. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Any such waiver will be narrowly construed to apply only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
8.4 Relationship. Nothing in this Agreement will be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.
8.5 Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable. If any provision or part of this Agreement will, to any extent, be or become invalid, illegal or unenforceable, the remainder of this Agreement will continue in effect, and every other provision of this Agreement will remain valid and enforceable to the full extent permitted by applicable law. In such event, the invalid or unenforceable provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect.
8.6 Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby will be governed by and construed in accordance with the laws of the State of New York without regard to its rules of conflict of laws. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of New York and of the United States of America located in New York, New York (the “New York Courts”) for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the New York Courts and agrees not to plead or claim in any New York Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the New York Courts.
8.7 Entire Agreement. This Agreement constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. This Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both Parties.
8.8 Force Majeure. No Party hereto will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any cause beyond its reasonable control, including: (a) any fire, explosion, unusually severe weather, natural disaster or Act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e) any strike, lockout or other labor dispute or action; (f) any action taken in response to any of the foregoing events by any civil or military authority.
8.9 Publicity. Each Party may use the other Party’s name and logo in connection with describing the relationship hereunder, including on its website and in marketing materials, provided, that, such Party obtains the prior written permission of such other Party.