These terms of service, together with any order (“Order”) signed by the Parties and incorporating these terms of service by reference, constitute a legally binding agreement (as may be amended, restated, supplemented or modified from time to time, collectively, the “Agreement”) between “Advertiser”, a company that creates content featuring products and/or services, and Flipp Operations Inc. (“Flipp”) who operates, among other things the Flipp Marketplace (as defined herein). Any reference to Flipp herein shall refer to Flipp and/or any or all of its Affiliates. If applicable, Agency is the agency of record for Advertiser, and is accepting these terms of service on behalf of Advertiser. Where applicable, “Advertiser” shall be interpreted as “Agency (on behalf of Advertiser)”.
In consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1.1 Construction and Order of Precedence: This Agreement consists of: (i) the Order or any other document that incorporates the terms and conditions of this document by reference, (ii) this document, (iii) any policies, procedures, or terms and conditions included or referenced in this document, and (iv) all schedules, appendices and/or exhibits attached hereto or referenced herein, all of which forms a part of this Agreement. Any documents referenced in (i)-(iv) above shall include such documents that have been signed by Flipp Corporation. All such documents were assigned to Flipp Operations Inc. by Flipp Corporation in accordance with the terms of this Agreement. To the extent there is a conflict or inconsistency between any of the documents forming part of this Agreement, the conflict or inconsistency shall be resolved in the order as presented in this Section 1.1
1.2 Definitions
“Advertiser Content” means the Advertiser-provided content (including instructions regarding the display and organization of the content, pdfs or other documents, visual assets (e.g. photography), product details, names, logos, trade dress, designs, marks, or other trademarks or domain names/URLs owned by Advertiser or licensed to Advertiser from a third party, or any content received through Advertiser’s APIs or other feeds) that is provided to Flipp for use on the Flipp Marketplace.
“Advertiser Materials” means any material provided or made available to Flipp by Advertiser for the purposes of Flipp providing the Services. For the avoidance of doubt, Advertiser Materials shall include the Advertiser Content and Advertiser’s Confidential Information.
“Advertising Cost” means the Cost Per Read, Cost Per Click, or any other cost payable by Advertiser in connection with an Auction or otherwise under such other billing models as may be made available by Flipp to Advertiser. In connection with an Auction, the actual Advertising Cost payable by Advertiser depends on the results of the applicable Auction (but for greater certainty it shall not exceed the Bid set by Advertiser). The current default billing models and the associated rates are available at https://corp.flipp.com/legal/storefrontstos/.
“Affiliate” means, with respect to an entity, any person or entity that directly or indirectly owns, is owned by, or is under common ownership with that entity. For purposes of this definition, ownership means control of more than a 50% interest in an entity.
“Auction” means a process for determining whether and where an Advertiser’s Digital Storefront will be Promoted on the Flipp Marketplace. The outcome of each Auction and the resulting Advertising Cost payable will depend on Advertiser’s Bid and Flipp’s applicable proprietary relevancy score associated with the Digital Storefront.
“Bid” means the maximum Advertising Cost that Advertiser is willing to pay in connection with an Auction, as set by Advertiser.
“Business Day” means every day except Saturdays, Sundays and statutory holidays in the Province of Ontario, during business hours between 9AM and 5PM EST/EDT.
“Cost Per Click” means a form of Advertising Cost wherein Advertiser pays when there is a click by an end-user to open or view a Promoted Digital Storefront. For greater certainty, references to “Cost Per Open” or “CPO” shall be interpreted as being a “Cost Per Click”.
“Cost Per Read” means a form of Advertising Cost wherein Advertiser pays when there is a Digital Storefront Read on a Promoted Digital Storefront. For greater certainty, references to “Cost Per Engagement” or “CPE” shall be interpreted as being a “Cost Per Read”.
“Cost per Thousand Impressions” or “CPM” means a form of Advertising Cost where Advertiser pays for each thousand impressions of the Digital Storefront or Brand Media Ad, as applicable, delivered by Flipp.
“Digital Storefront” means the output of the Storefront Platform, following the processing, conversion, organization, and/or arrangement of the Advertiser Content.
“Digital Storefront Read” means an action taken by the end-user to read a Digital Storefront on the Flipp Marketplace. End-user’s action will be considered a “read” when the end-user: a) opens, retrieves, downloads or otherwise takes an action to view the Digital Storefront of an Advertiser using the Flipp Marketplace; and b) views the Digital Storefront for at least six (6) seconds, or performs an interactive action subsequent to (a) such as viewing a video, clicking through to a store, and panning, zooming or using a navigation interface using the Flipp Marketplace.
“Distribution Date” means the date on which the Advertiser Content is to be distributed to end-users in the form of the Digital Storefront.
“Distribution Partner” means a third-party entity with which Flipp has a contractual right to distribute content.
“Flipp App” means the Flipp™ mobile application.
“Flipp Dashboard” means the account administration section of the Flipp Marketplace. The Flipp Dashboard is located at https://marketplace.wishabi.com/dashboard#/reach or such other URLs as Flipp may provide from time to time. In addition to the terms in this Agreement, use of the Flipp Dashboard is subject to the terms and conditions set out therein.
“Flipp Marketplace” means Flipp’s proprietary dynamic platform that brings the next-generation of digital shopping content to end-users, including properties (i) owned and operated by Flipp (“Flipp Properties”) or (ii) owned and operated by a Distribution Partner, or to which a Distribution Partner has the necessary rights. The platform includes all front-end, back-end and other related technologies, including all updates and enhancements to same, for digitizing, processing, displaying, and distributing content to end-users. The platform shall also include all methods, processes, data, information, wrappers and other business property related to and generated from the platform; except that, the Flipp Marketplace shall not include Advertiser Materials. For avoidance of doubt, the Flipp Marketplace shall include the Storefront Platform, the Flipp Dashboard and the reebee Application.
“Flipp Materials” means any material provided or made available to Advertiser by Flipp in connection with the Services. For the avoidance of doubt, Flipp Materials shall include Digital Storefronts (excluding Advertiser Content), the Flipp Marketplace, Templates, and Flipp’s Confidential Information.
“Intellectual Property Rights” means all title, interest or right or other protection (whether by statute, equity, common law or otherwise) existing from time to time in a specific jurisdiction, whether by virtue of application, registration or otherwise, under any patent law or other invention or discovery including pending applications therefor and patents which may be issued from current applications (including divisions, reissues, renewals, re-examinations, continuations, continuation-in-part and extensions), copyright law, industrial design, integrated circuit, moral rights, Confidential Information (including trade secrets), trademark, trade name, brand name, domain name or other similar applicable laws and includes legislation related thereto and including judicial decisions under common law or equity.
“Material Default” shall be deemed to have occurred if either Party: (i) materially fails to perform or comply with this Agreement, and fails to remedy such failure within 30 days following written notice; (ii) goes into liquidation, receivership or administration or becomes bankrupt; (iii) makes any arrangement for the benefit of its creditors; (iv) admits its inability to pay its debts as they mature; or (v) has a receiver appointed for any of its assets.
“Masthead” means the first promoted position in the applicable platform on the Flipp Marketplace (i) on a calendar day or days (the “Masthead Date”), and (ii) for all end users in Advertiser’s distribution radius in a geographic area or areas; such day(s) and geographic area(s) to be agreed to in advance between Advertiser and Flipp.
“Masthead Budget” shall have the meaning ascribed to such term in Section 3.1(b)(ii).
“Parties” means Flipp and Advertiser and “Party” shall mean either one of them.
“Promote” means to increase the visibility of the Digital Storefront on the Flipp Marketplace.
“Promotion Budget” means the dollar amount set by Advertiser to include the Digital Storefront in Auctions on the Flipp Marketplace.
“reebee Application” means the reebee™ mobile application.
“Representative Parties” means, with respect to an entity, its Representatives, its Affiliates, and its Affiliates’ Representatives.
“Representatives” means an entity’s employees, directors, officers, legal counsel, financial advisors (including accountants and auditors), agents, and contractors.
“Sponsored Search” means the promotion of content in response to a query by end users on the Flipp Marketplace (i) for a specified period, and (ii) for all end users in Advertiser’s distribution radius in a geographic area or areas; such day(s) and geographic area(s) to be agreed in advance between Advertiser and Flipp.
“Storefront Platform” means Flipp’s platform for the creation of customizable, digitally generated Digital Storefronts using Templates and Advertiser Content.
“Sufficient Lead Time” means the agreed amount of time between the provision of all the Advertiser Content required to generate the Digital Storefront by Advertiser to Flipp and the Distribution Date, based on the process determined by the Parties.
“Template” means the pre-set, Flipp developed templates for use in connection with the Storefront Platform.
2.1 During the Term, Flipp agrees to provide the services described in this Section 2 (including any services incidental to those described herein, the “Services”) to Advertiser.
a. Creation of Digital Storefronts. Advertiser will provide Flipp with Advertiser Content, which will then be processed, converted, organized, and/or arranged by the Storefront Platform to create Digital Storefronts. The format of the Digital Storefront shall be as agreed between Advertiser and Flipp (which for greater certainty may be agreed via email notification, the Flipp Dashboard, or any other means agreed to in writing by both Parties), however Flipp shall have sole discretion over which formats are made available to Advertiser.
i. Additional Costs. The Services described in Section 2.1(a) may be subject to additional costs.
b. Inclusion into the Flipp Marketplace: Flipp may include the Digital Storefront on the Flipp Marketplace by the Distribution Date.
c. Promotion on the Flipp Marketplace: If Advertiser sets a Promotion Budget (see Section 3.1(a)) or Masthead Budget (see Section 3(b)(ii)), Flipp may Promote the Digital Storefront on the Flipp Marketplace.
d. Condition: Services listed in Sections 2.1(b) and 2.1(c) are subject to Advertiser providing the Advertiser Content within the applicable Sufficient Lead Time, and Advertiser complying with the then-current content policies of Flipp.
e. Acknowledgment. Advertiser acknowledges and agrees that it remains responsible for all Advertiser Content, and notwithstanding anything else herein, Flipp shall have no liability with regards to a Digital Storefront that has been generated on the Storefront Platform in accordance with the Templates, Flipp’s standard guidelines, or any agreed style guide between Advertiser and Flipp.
2.2 Affiliates of Advertiser: At Advertiser’s option, subject to this Agreement, Advertiser’s Affiliates may also use the Services. All actions/inactions of Advertiser’s Affiliates shall be deemed that of the Advertiser and Advertiser agrees to be fully responsible for its Affiliates.
3. FEES; BUDGET SETTING; DISTRIBUTION
3.1 Promotion Budget.
a. Promotion Budget Setting: Advertiser shall have the sole discretion of setting and modifying the Promotion Budget. The Promotion Budget may be set through (i) email notification, (ii) the Flipp Dashboard, or (iii) any other means agreed to in writing by both Parties. For any decrease in the Promotion Budget, Flipp will use commercially reasonable efforts to make such decrease effective within one Business Day of the notice of the change. Advertiser shall remain responsible for the fees during such time. The Promotion Budget shall be exclusive of Applicable Taxes and Applicable Taxes shall be applied to the Promotion Budget at the time of invoicing.
b. Promotion.
i. Flipp Marketplace: If Advertiser sets a Promotion Budget, the Digital Storefront will be included in Auctions on the Flipp Marketplace. The results of the Auctions shall determine the Advertising Costs associated with any Promotion of the Digital Storefront, and Advertiser shall be charged the applicable Advertising Costs plus all Applicable Taxes. For greater certainty, the Advertising Cost associated with an Auction and payable by Advertiser will not exceed Advertiser’s Bid.
ii. Masthead: Advertiser may set budget for a Masthead (the “Masthead Budget”) through (i) email notification, (ii) the Flipp Dashboard, or (iii) any other means agreed to in writing by both Parties. Advertiser shall be charged the applicable Advertising Cost for a Masthead pursuant to the billing model available at https://corp.flipp.com/legal-storefronts-rates. Advertiser shall also set a sufficient Promotion Budget for its Digital Storefront on the relevant Flipp Marketplace platform for the duration of the Masthead Date. Upon setting a Masthead Budget, Advertiser shall not be permitted to cancel the Masthead or Masthead Budget.
iii. Brand Media: Advertiser may also set a budget for Flipp’s brand media network, subject to the terms available at https://corp.flipp.com/legal-bmtos.
iv. Sponsored Search : Advertiser may also set budget for Sponsored Search through (i) email notification, (ii) the Flipp Dashboard, or (iii) any other means agreed to in writing by both Parties. Advertiser shall be charged the applicable cost for Sponsored Search pursuant to the billing model available at https://corp.flipp.com/legal-storefronts-rates. Upon setting a budget for Sponsored Search, Advertiser shall not be permitted to cancel.
c. Condition and Optimization: Due to the nature of the Flipp Marketplace, promotion is on a non-guaranteed basis. Advertiser will not be charged for any unused Promotion Budget. For greater certainty, Flipp reserves the right to optimize the use of any Promotion Budget, Brand Media Budget, and/or Masthead Budget between the properties comprising the Flipp Marketplace. For Advertisers subject to an Order imposing a minimum spend or a minimum budget, allocation of Promotion Budget across the Flipp Marketplace and availability of properties comprising the Flipp Marketplace shall be at Flipp’s sole and unfettered discretion.
4. INVOICE AND PAYMENT
4.1 Invoice: At the end of each month, Flipp will invoice Advertiser for the Services provided during the previous month, plus Applicable Taxes. Notwithstanding the foregoing, Flipp will invoice Advertiser for a Masthead immediately following Advertiser setting a Masthead Budget pursuant to 3.1(b)(ii).
4.2 Payment: Payment shall be due net 30 days from the date of the invoice unless otherwise specified in an Order. Any late payment shall be subject to an interest of (i) two percent per month, compounded monthly, or (ii) the highest rate allowed by applicable law, whichever is less. In the event that Advertiser is late on any payment due to Flipp, Flipp reserves the right to (i) pause any Services, and (ii) require that any future Promotion Budgets or other fees, as applicable, be invoiced in advance and paid to Flipp by Advertiser prior to any Promotion.
4.3 Taxes.
a. If applicable, Advertiser shall provide to Flipp a valid direct pay permit or a similar tax exemption certificate (“Tax Exemption Certificate”) for all applicable taxes, including sales and use taxes, (“Applicable Taxes”) at least 15 days before the invoice date from which the Tax Exemption Certificate is to take effect. Flipp shall then invoice Advertiser according to Section 4.1 without Applicable Taxes and Advertiser shall be responsible for remitting Applicable Taxes to the proper taxing authorities. Advertiser shall indemnify and hold harmless Flipp against any claims or assertions by any relevant taxing authority in respect of such Applicable Taxes owed in connection with the Services rendered by Flipp pursuant to this Agreement.
b. In event that Advertiser does not hold Tax Exemption Certificate in respect of Applicable Taxes, or such certificate is not applicable, Flipp shall collect and remit all Applicable Taxes with respect to the Services provided to Advertiser. The Applicable Taxes shall appear in the monthly invoice sent to the Advertiser according to Section 4.1. Advertiser agrees to cooperate with Flipp for the collection of all Applicable Taxes, including with respect to changes to the applicable tax law.
5. TERM & TERMINATION
5.1 Term: This Agreement commences on the start date set out in the Order and continues until the end date specified in the Order (the “Term”).
5.2 Termination: Either Party may terminate this Agreement (i) without cause by providing the other Party with 30 days’ written notice, or (ii) with immediate effect by providing the other Party with written notice in the event such Party has committed a Material Default.
5.3 Survival: Upon termination or expiry of this Agreement, all provisions indicated herein as surviving termination or expiry of this Agreement shall remain in full force and effect. Moreover, termination or expiration of this Agreement shall not relieve Advertiser’s obligation to pay Flipp any amounts due under this Agreement.
6. LICENSE GRANTS; RESTRICTIONS
6.1 Service License: During the Term, Flipp grants to Advertiser and its Representatives a royalty-free, non-exclusive, personal, non-transferable, non-sublicensable right and license to use the Services in accordance with this Agreement.
6.2 Service License Restrictions: Advertiser or its Affiliates, and their respective Representatives, shall not directly or indirectly: (i) use a Service for the purpose of creating any service or software that performs substantially the same functionality as the Service; (ii) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile a Service; (iii) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Services; or (iv) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information it obtains or learns pursuant to this Agreement in violation of any export control or other laws and regulations of Canada, the United States, or any other relevant jurisdiction.
6.3 Advertiser Materials License: During the Term, Advertiser grants to Flipp a royalty-free, non-exclusive, personal, non-transferable, non-sublicensable right and license to the Advertiser Materials to use in connection with Flipp’s provision of the Services, or as otherwise expressly permitted, under this Agreement. Additionally, Flipp’s Representative Parties shall be permitted to use the Advertiser Materials in connection with Flipp’s provision of the Services contemplated hereunder.
7. PROPRIETARY RIGHTS
7.1 Flipp Ownership: Flipp shall own all right, title and interest (including Intellectual Property Rights) to the Flipp Materials. Except for the limited rights to the Flipp Materials expressly granted to Advertiser and its Representative Parties in connection with the use of the Services, no other right or permission is granted.
7.2 Advertiser Ownership: Advertiser and its Affiliates, as applicable, shall own all right, title and interest (including Intellectual Property Rights) to the Advertiser Materials. Except for the limited rights to the Advertiser Materials expressly granted to Flipp and its Representative Parties in connection with the provision of the Services, no other right or permission is granted.
7.3 Feedback: During the provision of the Services, if Advertiser or its Representative Parties, in its sole discretion, makes any suggestions for changes, modifications or improvements to the Services (“Feedback”), all such Feedback shall be solely owned by Flipp. Advertiser and its Representative Parties shall do all that is necessary to assign the ownership of such Feedback to Flipp.
8. REPRESENTATIONS AND INDEMNITIES OF FLIPP AND ADVERTISER
8.1 Representations of Flipp and Advertiser: Each Party represents that (i) it has all necessary corporate power to enter into and perform its obligations under this Agreement; (ii) it has all necessary rights to grant to the other Party the rights herein granted; and (iii) that it is duly organized, validly existing and in good standing. Advertiser represents that Advertiser Materials and the Digital Storefronts created by Flipp in accordance with this Agreement will not contravene, violate, or breach any applicable laws, regulations, orders and other requirements, or any agreement with a third party. If applicable, Agency represents that it has the authority as Advertiser’s agent to bind Advertiser to this Agreement and that all of Agency’s actions related to this Agreement will be within the scope of such agency.
8.2 Indemnities.
a. General: Except as specified in Section 8.2(c), each Party (the “Indemnifying Party”) will indemnify, defend and save harmless the other Party, its officers, its directors and its Representatives (each an “Indemnified Party” and collectively, the “Indemnified Parties”) from and against all losses, damages, costs and expenses (including legal fees and disbursements) (collectively, “Losses”) resulting from any claim, judgment or proceeding (collectively, “Claims”) brought by a third party and arising in connection with any breach of Section 8.1 by the Indemnifying Party.
b. Intellectual Property.
i. Except as specified in Section 8.2(c), Flipp as the Indemnifying Party shall indemnify, defend, and hold harmless, the Advertiser Indemnified Parties from all Losses resulting from any third party Claims resulting from any allegation that the Flipp Properties used in connection with the Services infringe on the Intellectual Property Rights of a third party.
ii. Except as specified in Section 8.2(c), Advertiser as the Indemnifying Party shall indemnify, defend, and hold harmless, the Flipp Indemnified Parties from all Losses resulting from any third party Claims resulting from its use of the Advertiser Materials in connection with the Services, or any allegation that the Advertiser Materials infringe on the Intellectual Property Rights of a third party.
c. Exceptions: The Indemnifying Party shall have no obligation to indemnify, defend and hold harmless the Indemnified Parties for Losses that arise out of or in connection with:
i. The modification of (i) Services by an Advertiser Indemnified Party or its Affiliates without Flipp’s prior written consent, or (ii) Advertiser Materials by a Flipp Indemnified Party other than in accordance with this Agreement;
ii. The combination of (i) Services with intellectual property of a third party not supplied by Flipp, if the infringement would have been avoided but for such combination, or (ii) Advertiser Materials with intellectual property of a third party not supplied by an Advertiser Indemnified Party or its Affiliates, if the infringement would have been avoided but for such combination;
iii. The gross negligence or intentional misconduct of the Indemnified Parties or their Affiliates; or
iv. An Advertiser Indemnified Party’s or its Affiliate’s failure to use the Services in accordance with the terms and conditions in this Agreement.
d. Parties agree that the indemnity obligations set out in Section 8.2(b) is each Party’s only remedy under this Agreement for violation of a third party’s Intellectual Property Rights.
8.3 Indemnification Procedure.
a. If any action is brought or is threatened to be brought against the Indemnified Parties in respect of any claim for indemnification pursuant to Section 8.2, the Indemnified Parties shall promptly give written notice to the Indemnifying Party. The Indemnified Parties will cooperate with the Indemnifying Party at the Indemnifying Party’s out-of-pocket expense in all reasonable respects in connection with the defense of any such action. The Indemnifying Party will, upon written notice from the Indemnified Parties, undertake to conduct all proceedings and negotiations in connection therewith, assume the defense thereof, and all other required steps or proceedings to settle (such settlement being subject to the Indemnified Parties’ approval, which shall not be unreasonably withheld) or defend any such action, including the employment of counsel that will be satisfactory to the Indemnified Parties (the approval of which shall not be unreasonably withheld), and payment of all expenses. The Indemnified Parties will have the right to employ separate counsel and participate in the defense at the Indemnified Parties’ sole expense. The Indemnified Parties will not settle or compromise any claim or action on the Indemnifying Party’s behalf without first obtaining the Indemnifying Party’s written permission, which permission will not be unreasonably withheld.
b. The Indemnified Parties will promptly provide the Indemnifying Party with written notice of any information that comes to its attention and that might lead to a claim that the Indemnified Parties may assert under Section 8.2. The Indemnified Parties’ failure to provide prompt written notice shall not relieve the Indemnifying Party of any indemnification obligations under Section 8.2 unless the Indemnifying Party is materially prejudiced by such failure, in which case the Indemnifying Party shall have no obligation under Section 8.2 with respect to such claim.
9. CONFIDENTIALITY
9.1 “Confidential Information” means any non-public information disclosed to a Party (“Receiving Party”), or its Representative Parties, in connection with or related to the provision or use of the Services during the Term, by the other Party or its Representative Parties (“Disclosing Party”), either directly or indirectly, in writing, orally, by inspection of tangible objects or by data feed or other electronic means, that is marked or identified as “Confidential Information”, “Confidential” or “Proprietary”, or with similar designations, or would be reasonably considered confidential and/or proprietary. However, Confidential Information shall not include information that (i) is or subsequently becomes publicly available without breach of any obligation owed to Disclosing Party; (ii) became known to Receiving Party or its Representative Parties, without confidentiality restrictions, prior to Disclosing Party’s disclosure of such information to Receiving Party or its Representative Parties pursuant to the terms of this Agreement, as shown by Receiving Party’s records; (iii) became known to Receiving Party or its Representative Parties from a source other than Disclosing Party other than by the breach of a confidentiality agreement or a contractual, legal or fiduciary obligation; or (iv) is independently developed by Receiving Party without any use of or reference to the Confidential Information. It will be understood that the burden of proving that information is not Confidential Information rests with the Receiving Party.
9.2 Receiving Party and its Representative Parties shall:
a. Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information, except as expressly provided in Sections 9.3 and 9.4 of this Agreement or otherwise expressly permitted by Disclosing Party in writing;
b. Refrain from using or attempting to use any Confidential Information except as necessary in connection with the purpose for which such Confidential Information is disclosed pursuant to this Agreement; and
c. Take reasonable security precautions, at least as great as the precautions it takes to protect its own Confidential Information, but not less than reasonable care, to keep confidential the Confidential Information.
9.3 Receiving Party may disclose Confidential Information in accordance with a judicial or other governmental order, provided that Receiving Party gives Disclosing Party reasonable written notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, or if Disclosing Party waives compliance with the provisions hereof, Receiving Party agrees to disclose or furnish only that portion of the Confidential Information that Receiving Party is advised by written opinion of counsel is legally required to be disclosed or furnished and, to the extent reasonably possible in the circumstances, Receiving Party agrees to use best efforts to obtain written assurance from the applicable governmental authority that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.
9.4 Receiving Party may disclose Confidential Information only to its Representative Parties on a need-to-know basis for the sole purpose of performing or using the Services and provided such Representative Parties are bound by an agreement of confidentiality and non-use obligations having terms similar to those in this Section 9. Receiving Party shall be responsible for and liable to Disclosing Party for any breach of this Section 9 by its Representative Parties.
9.5 All Confidential Information shall at all times remain the personal property of the Disclosing Party and Receiving Party shall, at Disclosing Party’s request, return all Confidential Information, or at Receiving Party’s option, certify destruction of same within 10 Business Days of the request.
9.6 Receiving Party acknowledges that the disclosure of any aspect of the Confidential Information may give rise to irreparable injury to Disclosing Party inadequately compensable in damages. Accordingly, Disclosing Party may seek injunctive relief to prevent the unauthorized use or disclosure of the Confidential Information in addition to any other legal remedies which may be available to it, and Receiving Party hereby consents to the obtaining such injunctive relief. Receiving Party shall advise the Disclosing Party promptly in writing of any unauthorized disclosure or use of Confidential Information.
10. LIMITATION OF LIABILITIES; DISCLAIMER
10.1 IN THIS SECTION 10, THE TERM “PARTY” SHALL INCLUDE ITS REPRESENTATIVE PARTIES.
10.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR REVENUE RELATED IN ANY WAY TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY SUCH DAMAGES CLAIM IS BASED, EVEN UPON THE FAULT, TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, STATUTE, REGULATION, OR ANY OTHER THEORY OF LAW OR BREACH OF WARRANTY BY, OR STRICT LIABILITY OF, THAT PARTY. THIS EXCLUSION APPLIES EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN IF ANY AVAILABLE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. MOREOVER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY FAILURE OR DELAY IN THE PERFORMANCE OF ITS OBLIGATIONS BY REASON OF ANY CAUSE OR EVENT BEYOND THE REASONABLE CONTROL OF THE PARTY THAT COULD NOT HAVE BEEN REASONABLY FORESEEN AND PREVENTED BY MEANS REASONABLY AVAILABLE TO IT.
10.3 THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE ONLY REPRESENTATIONS AND WARRANTIES MADE BY EACH PARTY. EACH PARTY EXPRESSLY DISCLAIMS, AND THE OTHER PARTY HEREBY EXPRESSLY WAIVES, ALL OTHER REPRESENTATIONS AND WARRANTIES (EXPRESS OR IMPLIED), INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, AND FREEDOM FROM INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, FLIPP DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
10.4 FLIPP’S TOTAL LIABILITY ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ON A PER CLAIM BASIS OR AGGREGATE BASIS, SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID TO FLIPP BY ADVERTISER IN THE SIX MONTHS PRIOR TO THE CLAIM.
11. GENERAL PROVISIONS
11.1 Press Release: Neither Party may issue a press release to announce the relationship established by this Agreement without the written consent of the other Party.
11.2 Entire Agreement: This Agreement constitutes the entire Agreement between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral, between Advertiser and Flipp. The Parties expressly disclaim any reliance on any and all communications, discussions, proposals and/or agreements (verbal or written) between the Parties. There are no other verbal agreements, representations, warranties, undertakings or other agreements between the Parties. This Agreement will not be modified by any written agreement dated after the Effective Date unless signed by both Parties by their duly authorized representatives. Any previous agreements between Advertiser and Flipp for Services are terminated and of no further force, except for the provisions indicated therein as surviving termination or expiration. Further, Advertiser acknowledges and agrees that Flipp will not be bound by any term, condition or other provision which is different from or in addition to the provisions in this Agreement (whether or not it would materially alter this Agreement) including, for greater certainty, any term, condition or other provision: (a) submitted by or on behalf of Advertiser in any order, purchase order, vendor form, banking form, receipt, acceptance, confirmation, correspondence, shrink-wrap agreement, click-through agreement or other document, (b) related to any online registration or questionnaire, (c) related to any invoicing process that Advertiser, or any other party on behalf of Advertiser, requires Flipp to complete.
11.3 Severability: If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the Parties hereto and has like economic effect.
11.4 No Assignment: Neither Party may assign or otherwise transfer any part of this Agreement without the prior written consent of the other Party. Any assignment or attempted assignment by either Party without the other Party’s written consent shall be null and void. Notwithstanding the foregoing, without securing such prior consent, either Party shall have the right to assign this Agreement and the obligations hereunder to any Affiliate or to any successor of such Party by way of merger, consolidation, reorganization or in connection with the acquisition of at least a majority of the business and assets of the assigning Party, provided that: (a) the assigning Party provides the other Party with written notice; (b) the successor or assignee agrees in writing to be bound by the obligations set forth herein; and (c) the assigning Party is not in material breach or default of this Agreement at the time of the assignment; and (d) in the case of an assignment by Advertiser, the assignee is not a Flipp competitor, as determined by Flipp acting reasonably.
11.5 Third Parties: Except as expressly set forth herein, nothing contained in this Agreement is intended to confer upon any person not a party hereto any rights, benefits or remedies of any kind or character whatsoever, and no such person shall be deemed a third-party beneficiary under this Agreement.
11.6 Relationship: This Agreement shall not create a relationship of partnership, joint venture, employment, agency, franchise or other form of agreement or relationship. The Parties shall only be considered as independent contractors.
11.7 No Waiver: No provision of this Agreement may be waived, except in writing executed by each of the Parties. No failure to exercise, or delay in the exercise of, a Party’s rights under this Agreement will constitute a waiver of such rights. No waiver of a provision of this Agreement will constitute a waiver of the same or any other provision of this Agreement other than as specifically set forth in such waiver.
11.8 Currency: The applicable currency for all costs incurred by Advertiser under this Agreement shall be charged based on the currency in the jurisdiction of the distribution area for the applicable Digital Storefront.
11.9 Governing Law: This Agreement shall be governed and construed in accordance with the laws of (i) the state of Delaware and the federal laws of the United States applicable therein, if Advertiser is domiciled in the United States, or (ii) the province of Ontario and the federal laws of Canada applicable therein, if Advertiser is domiciled in Canada; excluding the application of any rule or principle of conflict of law that might otherwise refer construction, interpretation, or the resolution of any dispute to the laws of another jurisdiction. Where any dispute arises from this Agreement, including a breach of this Agreement, both Parties agree not to bring any legal action against the other Party in any jurisdiction except in (i) the state of Delaware if Advertiser is domiciled in the United States or (ii) the province of Ontario if Advertiser is domiciled in Canada. However, the foregoing shall not prevent either Party from seeking equitable relief or enforcing a judgment in another jurisdiction.
11.10 Notice: Each Party shall deliver all notices required hereunder in writing and addressed to the other Party at the address set forth on the Order (or to such other address that may be designated by the receiving party from time to time in connection with this Section). Each Party shall deliver all Notices by (i) personal delivery, (ii) nationally recognized overnight courier with fees prepaid, (iii) certified or registered mail with return receipt requested and postage prepaid or (iv) by email. A Notice is effective upon receipt by the receiving party if the party giving Notice has complied with this Section. Any Notice by Advertiser to Flipp shall also be sent by email to Flipp at legal@flipp.com.
11.11 Counterparts: Any Order or this Agreement may be executed in any number of counterparts, each of which is deemed an original, and all of which taken together constitute one and the same agreement. A counterpart may be delivered by email attachment (of a PDF document or similar format) or other electronic means which shall be as effective as hand delivery of the original executed counterpart.
11.12 Survival: Sections 4.3 (Taxes), 7 (Proprietary Rights), 8.2 and 8.3 (Indemnities), 9 (Confidentiality), 10 (Limitation of Liability), and 11 (General Provisions) shall survive and remain in full force and effect following any termination or expiration of this Agreement.