Brand Protection – Terms & Conditions (EEA)
A. Corsearch, Inc., (“Corsearch”), by and through its related entities, is a service provider within the field of brand protection and provider of an advanced technical search platform – ZERO – with the ability to organize information on counterfeit goods and brand infringement.
B. These Terms & Conditions apply to any agreement, and to all other legal relationships between Corsearch, by and through its related entities, and the Customer connected with the license or purchase of Services by the Customer from Corsearch and all Services are provided by Corsearch are subject to these Terms & Conditions.
In these Terms & Conditions, the following terms, when appearing with a capital initial letter, have the meaning set forth below.
“Affiliate” of Customer means any Person that directly or indirectly controls, is controlled by or is under common control with the Customer and each of such Person’s executive officers, directors, limited liability company managers, partners, members, owners, employees and consultants. For the purpose of this definition, “control” of a Person means the power to direct, or to cause the direction of, the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise;
“Agreement” means the agreement between the Parties, which consists of the license and service agreement (if relevant), Corsearch’s proposal and all appendices thereto, including but not limited to these Terms & Conditions and Corsearch Data Protection Terms.
“Authorized Persons” means those Persons (whether personnel of Customer or its clients), who are authorized by Customer to have access to and use ZERO and the relevant part of the Content; provided, however, that it shall be a conclusive presumption that any Person presenting valid authentication credentials to access ZERO has been so authorized, unless Corsearch has been notified to the contrary;
“Commencement Date” means the date when the Services is agreed to be taken into active use by Customer, as set out in the Agreement.
“Confidential Information” has the meaning ascribed to it in Clause 10.
“Content” means the contractual, legal or other documentation and materials and all information contained therein which has been loaded onto, created, edited, modified or otherwise produced by an Authorized Person or Customer as a result of using ZERO for the provision of the Services hereunder by Corsearch to Customer. This does not include public information or output otherwise produced by Corsearch or ZERO that is not designated within the scope of Services delivered to the Customer.
“Customer” has the meaning ascribed to it in the Agreement.
“Disclosing Party” means in respect of any item of Confidential Information, the Party disclosing that item of Confidential Information to the other Party.
“Enhancement” means any bug fix, update, upgrade, new version, patch, modification or enhancement to ZERO that may be provided by Corsearch from time to time and which is generally made available to other Corsearch Customers at no additional cost or fee.
“Force Majeure” means any cause beyond a Corsearch’s control, as a result of which Corsearch is unable to perform its obligations under the Agreement. Such causes include but are not limited to acts of God, labour conflicts, acts of war or civil disruption, governmental regulations imposed after the fact, public utility failures, network failures, industry-wide shortages of labour or material, or natural disasters or health crises.
“Hosting Sub-Contractor” means the Person or entity selected by Corsearch to host ZERO, as necessary, to provide the Services hereunder.
“Intellectual Property Rights” means any copyright, database right, design right, rights to inventions (whether or not patentable), patents, patent applications, know-how, trademarks, service marks, trade secrets and any rights similar or analogous to any of the foregoing, in each case: (a) whether arising by operation of law, registrable or registered; (b) whether now known or in the future created; (c) in each and every part of the world; (d) for the full term of such rights together with any extensions; (e) including (without limitation) all future rights where capable of present assignment; and (f) with the right to claim for past infringement.
“Party”/”Parties” means in singular either Corsearch, by and through its related entities, or the Customer and in plural both Corsearch and Customer.
“Person” means an individual, a partnership, a limited liability company, a joint venture, a corporation, a trust, an unincorporated organization, a division or operating group of any of the foregoing, a government or any department or agency thereof, or any other entity.
“Personal Data” means “personal data,” as defined in the General Data Protection Regulation 2016/679 or applicable data protection laws.
“Purpose” means the relationship whereby entered into between the Parties, whereby Corsearch shall provide the Customer with the Services and license to ZERO for the Customer’s own internal use, all in accordance with the Terms and Conditions set forth in the Agreement.
“Recipient” means, in respect of an item of Confidential Information, the Party receiving that item of Confidential Information.
“Services” means all services to be performed and delivered by Corsearch under the Agreement, as detailed in Addendum A. The Customer will designate the Brand(s), Keyword(s), Module(s), Platform(s) and specific Services to be provided as part of its Brand Protection program, as defined in Addendum A.
“Source Materials” means the source code, executable code, software build process documentation and database scheme, coding guide and standards, other technical documents relating to the software, enhancements and such other text files in such form that they can be compiled or interpreted into object code together with all technical information and documentation which will allow the use, reproduction, modification and enhancement of the software comprising ZERO and each set of Enhancement from time to time, including information generated from ZERO through public source and clustering technology which enables the software to function and produce output.
“Standard Support Services” has the meaning ascribed to it in Clause 3.1.
“Sub-Contractors” means such sub-contractors of Corsearch, who are permitted to act in accordance with Clause 15.
“Term” has the meaning given to it in Clause 8.1.
“ZERO” means the software ZERO, and a technical search platform with the ability to organize information in relation to counterfeit goods and brand infringement, which is Corsearch’s proprietary software, together with any Enhancements thereto and any backup or copy of the same which is to be maintained and operated by Corsearch or any Hosting Sub-Contractor in any location, as provided by Corsearch pursuant to the Agreement, as necessary to perform and deliver the Services hereunder.
2. Licenses, Intellectual Property Rights and ownership
2.1 License to ZERO
2.1.1 Corsearch hereby grants to the Customer for the term of the Agreement a non-exclusive, non-transferable, non-sublicensable and worldwide license to access and use ZERO for its own business purposes.
2.2 Access to ZERO
The Customer will authorize new Authorized Persons to ZERO in accordance with the procedures established by Corsearch. Subject to Clause 2.3, and provided that the Customer complies with this requirement, Corsearch acknowledges and agrees that it has no right or entitlement to restrict, prevent or refuse any Authorized Person by the Customer from accessing ZERO. Notwithstanding the foregoing, on reasonable notice to Customer, Corsearch may regulate and restrict access in accordance with its access and security procedures in effect from time to time, including requiring entry of a valid username and password for access and/or such other procedures as may be in place in the future.
2.3 Reasonable co-operation
If Corsearch informs the Customer that there is or has been a security breach to ZERO, the Customer will provide such co-operation as may be reasonably required by Corsearch in order for Corsearch to identify and remedy the breach, to meet all of its global legal obligations.
2.4 Intellectual Property Rights and ownership of ZERO
2.4.1 All Intellectual Property Rights in and to ZERO (except in the Content), the Source Materials and the Enhancements shall remain vested in Corsearch and no Intellectual Property Rights are assigned or otherwise transferred to the Customer. All Intellectual Property Rights in and to all additions, developments, enhancements and improvements relating to any of the foregoing (except the Content) created, produced or carried out by the Customer shall be vested solely in Corsearch, and the Customer agrees that it shall execute all instruments, assignments and other documents reasonably requested by Corsearch in order to cause all such Intellectual Property Rights to be vested solely in Corsearch.
2.4.2 Corsearch warrants that it has the full legal right to license ZERO and that the use of ZERO by the Customer or Corsearch under the Agreement does not infringe on the Intellectual Property Rights of any third party.
2.5 Intellectual Property Rights and ownership of Content
2.5.1 All Intellectual Property Rights in or to Content contained within ZERO or supplied to Corsearch and/or a Hosting Sub-Contractor by Customer or Authorized Persons shall remain vested solely in the Customer. Insofar as Corsearch develops any software or related Source Materials in the course of the Agreement, not within the scope of the Services hereunder, all related Intellectual Property Rights belong to Corsearch solely. Corsearch shall ensure that none of the Hosting Sub-Contractors will obtain any rights to the Content as a result of performing any part of the Services. Corsearch shall promptly comply with any written request by the Customer to remove any Content from ZERO or to prevent any Person other than an Authorized Person from gaining access to ZERO.
2.5.2 The Customer warrants that no Content will violate any civil or criminal law or regulation, or infringe any Intellectual Property Rights of any third party, and that no Authorized Person will add any Content to ZERO in a manner that results in the violation of any civil or criminal law or regulation, or in infringement of any Intellectual Property Rights of a third party.
2.6 Content License
The Customer grants Corsearch a royalty-free and non-transferable license limited to the hosting of the Content on ZERO during the Term of the Agreement for the purpose of providing the Services. The Customer acknowledges that this license is limited to the Content, as defined, is that owned by and belonging to the Customer through the provision of the Services hereunder but that Corsearch is otherwise free to use ZERO and the Source Materials it owns to service other customers without limitation.
3. The Services
Corsearch will provide the Customer with the Services under the Brand Protection program, as chosen and designated by the Customer, by and through its agreed to service offering.
3.1 Standard Support Service
Corsearch shall provide Customer with the following support services (“Standard Support Services”) on an unlimited basis throughout the Term:
- Services of a qualified client manager designated by Corsearch (“Client Manager”) Monday through Friday, 8:00 a.m. to 5:00 p.m. Eastern Standard Time;
- Access to ZERO twenty-four (24) hours a day, seven (7) days a week, excepting planned downtimes for upgrades and new releases of the ZERO platform;
- Monthly reports on the overall performance and usage of the ZERO program as used by Customer based upon metrics to be mutually determined by the Parties, and as prepared by the Client Manager.
3.2 Hosting and Off-Site Back Up of Data
3.2.1 Corsearch shall host ZERO or, in its sole discretion, arrange for it to be hosted by a Hosting Sub-Contractor and ensure that the level of hosting service provided is fit for the Purpose. If Corsearch elects to have ZERO hosted by a Hosting Sub-Contractor, it shall comply with the requirements of Clause 15.
3.2.2 Corsearch shall back up all Content and data no less often than on a nightly basis to an offsite backup location.
3.3 Proper functioning and maintenance of ZERO
3.3.1 Corsearch shall ensure that:
(a) unless the specific requirements of the Agreement require different practices, Corsearch shall run and operate ZERO and perform the Services in accordance with good industry standards,
(b) no Person other than the Authorized Persons and appropriate Corsearch personnel and sub-contractors shall have access to ZERO,
(c) only the Authorized Persons who have been granted permission to access and/or editorial rights to a set of Content shall have access and/or editorial rights to that Content, and
(d) Corsearch applies and utilizes such information security techniques, measures, tools and protection as is necessary and consistent with good industry standards in the hosting and provision of ZERO and performance of the Services.
(e) no one other than Corsearch authorized personnel and the Sub-Contractors shall have access to the Content and/or ZERO, other than regular access to ZERO provided to the Customer and the Authorized Persons.
3.3.2 Corsearch may, upon at least seven (7) days’ prior written notice to the Customer or with the prior consent of the Customer on less than seven (7) days’ prior written notice, take down ZERO for scheduled maintenance.
3.4 Service levels
3.4.1 ZERO shall be up and running 24/7/365, with the exception for time during scheduled maintenance as set out above in Clause 3.2. The term “availability” as used in this section means general availability of the intended functionality of ZERO.
- Upon Corsearch’s failure to uphold agreed availability in ZERO during a calendar month, the Customer shall, as sole and exclusive remedy, be entitled to a reduction of the monthly fee for ZERO in accordance with the table below:
|Availability in %
|10 % of the monthly fee for ZERO
|20 % of the monthly fee for ZERO
|30 % of the monthly fee for ZERO
|40 % of the monthly fee for ZERO
3.4.3 Service level credits shall, unless otherwise agreed between the Parties, be settled against the monthly fee for the third subsequent calendar month after the origin of the right to service level credit, i.e. if the right to service level credit arose during March the monthly fee for June shall be reduced with the applicable percentage.
3.4.4 In order to receive service level credits, the Customer must notify Corsearch within thirty (30) days from the first occurrence of failure in order for the Customer to receive a service credit. The Customers notification must include the dates and times of alleged service issue, including request logs that corroborate the claimed outage.
3.4.5 Corsearch is not liable for any deviations from the service level caused by the Customer’s negligence or misuse of ZERO, Force Majeure or by the Customer’s external communication network. Corsearch can, accordingly, not be held responsible for any deviations from agreed service levels caused by deficit Internet access.
3.5 Upgrades, Enhancements and bug fixes
3.5.1 No later than three (3) months following the official release of a new version of an Enhancement to ZERO, Corsearch shall be permitted to update ZERO licensed by the Customer to such version or with such Enhancement.
3.5.2 No later than one (1) month following the official release of a bug fix or patch release to ZERO, Corsearch shall be permitted to update ZERO licensed by the Customer with such bug fix or patch release.
4. Financial and payment terms
4.1.1 The Customer shall pay the agreed fees for the Services as set out in the Agreement, as detailed in the Pricing Schedule, Addendum B.
4.1.2 Beginning on the first anniversary of the Commencement Date of the Agreement and every anniversary thereafter, Corsearch may increase the charges for the fees stated in the Agreement. In the event of any such proposed increase, Corsearch shall provide the Customer with written notice at least thirty (30) days in advance of each anniversary of the Commencement Date.
4.1.3 Pricing may otherwise be adjusted based on the authorized change of the scope of Services by the Customer. Such change(s) must be authorized in writing by the Customer and Corsearch.
4.1.4 Customer shall be invoiced for all costs that are related to goods that are purchased by Corsearch for the purpose of investigating an infringement within the scope of its Services and as instructed by the Customer. The purchased items will be Customer’s property from the moment of purchase. At Customer’s request, Corsearch will either deliver the purchased items to Customer or will have them destroyed. In the event Customer has not requested the delivery of the purchased items by the time the contract is terminated, Corsearch will destroy the respective goods.
4.2 Invoicing and payment
4.2.1 All fees shall be payable annually, or monthly, in advance against the invoice issued by Corsearch. The due date for each amount payable to Corsearch shall be thirty (30) days from the date the invoice was issued, unless otherwise agreed otherwise between the Parties.
4.2.2 All payments under the Agreement shall be made in U.S. Dollars, unless agreed otherwise between the Parties.
4.2.3 If the Customer has any issue regarding an invoice it must report the issue to Corsearch in writing within seven (7) days. Invoice disputes do not suspend the obligation to pay invoices.
4.3 Late payment
4.3.1 In the event of any late payment of the fees due under the Agreement, and Corsearch has requested the Customer in writing to pay the amount due, Corsearch may, thirty (30) days after written request to the Customer, suspend the access of the Customer and any Authorized Persons to ZERO until such time full payment has been made.
4.3.2 In the event of any late payment of the fees due under the Agreement, the Customer shall be liable to pay interest on the outstanding amount from the due date to the date of receipt of payment by Corsearch, at an annual rate equal to the lower of: (a) LIBOR plus three per cent (3%) or (b) the maximum rate permitted under applicable law.
4.4 Payment and collection of applicable taxes
4.4.1 All fees set forth in the Agreement are exclusive of applicable taxes and duties, including any taxes or VAT and/or applicable sales or use tax. The Customer will provide Corsearch with any information Corsearch may reasonably request in order to determine whether Corsearch is obligated to collect VAT, sales or use tax from the Customer, including the Customer’s VAT or taxpayer identification number, as well as tax exemption certificate or comparable documents, if applicable.
4.4.2 If Corsearch is required by law to collect any taxes, Corsearch, by and through Corsearch, Inc., will invoice the Customer therefore and the Customer will pay Corsearch any additional amounts necessary to ensure that the net amount that Corsearch receives, after payment of any taxes, equals the amount Corsearch would have received if no tax had been required.
5.1.1 Subject to the limitations of liability set out in Clause 6, each Party agrees to indemnify and defend the other Party from and against all claims, actions, proceedings, costs (including reasonable legal fees) expenses, losses, damages (other than consequential damages) and liabilities arising from the Party’s material breach of its obligations under this Agreement.
5.1.2 Corsearch agrees to indemnify the Customer from and against all claims, actions, proceedings, costs (including reasonable legal fees), expenses, losses, damages (other than consequential damages) and liabilities arising from any claim by a third party that the use of ZERO by the Customer or Corsearch under the Agreement infringes such third party’s Intellectual Property Rights.
5.1.3 The Customer agrees to indemnify and defend Corsearch from and against all claims, actions, proceedings, costs (including reasonable legal fees), expenses, losses, damages (other than consequential damages) and liabilities arising from any claim by a third party that: (1) Content violates any civil or criminal law or regulation, or infringes such third party’s Intellectual Property Rights; (2) damages or claims resulting from Corsearch reporting or taking actions instructed by the Customer, and/or under its authorization, as specified in Clause 6 and by and through the Authorization documents executed during the onboarding process; (3) when Customer used ZERO, the Content or the Services hereunder and took action independently.
6.1 Limitation of liability
6.1.1 Except in relation to its liability arising from Clauses 1.2 and 5.1.3 (Indemnity), Clause 10 (Confidentiality) and Clause 12 (Subpoenas, legal orders, demands or requests for information) Corsearch’s aggregate liability under the Agreement shall under no circumstances exceed the payments to which Corsearch would be entitled to invoice the Customer in the most recent calendar year.
6.1.2 Corsearch will not accept any liability if counterfeited products on internet or elsewhere are not found by Corsearch’s search engine, ZERO, or personnel.
6.1.3 Authorization Customer acknowledges that Corsearch acts under the authorization and instructions of the Customer in the creation, production and action taken on behalf of the Customer in relation to its brand enforcement and by and through the Services provided under this Agreement. If Corsearch is instructed to provide investigative services hereunder including but not limited to sending take down notices and/or purchasing products on Customer’s behalf, Customer will provide the required POA (Power of Attorney or related documents) during the onboarding process.
6.1.4 Corsearch is not responsible for third party claims resulting from or related to the instructed actions or Services provided.
6.1.5 Corsearch’s liability for errors or faults in or in relation to ZERO does further not include faults or errors caused by circumstances beyond Corsearch’s reasonable control.
6.1.6 No Party shall be liable for any loss of profits, loss of business, depletion of goodwill or similar losses, or pure economic loss for any special, indirect or consequential loss, costs, damages, charges or expenses, howsoever arising.
6.2 Loss of Content
If there is a loss of any Content posted by an Authorized Person, Corsearch shall use commercially reasonable efforts to re-constitute and retrieve such Content at its own expense; provided, however, that Corsearch shall not be required to expend an amount exceeding the lesser of: (a) the payments to which Corsearch would be entitled to invoice the Customer in the most recent calendar year pursuant to Clause 4 (Financial and Payment Terms) or (b) ten thousand U.S. Dollars. The Customer shall cooperate with Corsearch in such efforts, including by providing Corsearch with electronic and/or physical copies of materials making up lost Content.
7.1.1 Corsearch has in place and shall, during the Term of the Agreement provide and maintain in full force and effect, with a reputable insurance company, professional indemnity insurance with a limit of not less than $2 million U.S. dollars.
7.1.2 Upon the Customer’s reasonable request, Corsearch shall promptly produce documentation reasonably sufficient to establish that such insurance is in force.
8. Term and termination
8.1.1 The term of the Agreement, renewal term and notice period shall be specified in the Agreement. Unless the Parties agree otherwise, the initial term of the Agreement shall be one (1) year from the Commencement Date (“Initial Term”). Thereafter, unless either of the Parties gives written notice of non-renewal at least ninety (90) days, prior to the last day of the Initial Term (or the then-current Renewal Term), the Agreement shall automatically renew for successive one (1) year periods (each, a “Renewal Term”). The Initial Term, and the Renewal Terms are collectively referred to herein as the “Term”.
8.2 The Parties termination for breach
Either Party shall be entitled to terminate the Agreement immediately upon written notice if the other Party commits any material breach of its obligations under the Agreement that by its nature is not capable of cure or is capable of cure but is not cured within thirty (30) days after prior notice in writing from the terminating Party specifying the breach and requiring that it be cured within such thirty (30) day period.
8.3 Termination for insolvency
Either Party may terminate the Agreement in the following circumstances: (a) the other Party applies for, or consents to, the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (b) upon the other Party ceasing to conduct business, becoming or being declared by a federal bankruptcy court (or any other court of competent jurisdiction) to be insolvent or bankrupt, or being the subject of any proceeding under the federal bankruptcy code or under any other law relating to relief from creditors generally that is not dismissed within sixty (60) days; (c) upon the appointment of, or application for, a receiver, custodian, trustee or liquidator of the other Party or all or any substantial portion of the other Party’s business or operations; (d) upon the assignment of all or substantially all the assets of the other Party for the benefit of creditors; or (e) the other Party’s liquidation, dissolution or winding-up.
8.4 Termination for Convenience
Customer may terminate for convenience after the initial (6) months in the Initial Term of the Agreement. Thereafter, termination for convenience must be executed as stated herein in 8.1 at least ninety (90) days prior to the last day of any Renewal Term.
9. Consequences of termination
9.1 Upon termination of the Agreement howsoever arising,
(a) the Recipient shall return (or destroy, at the election of the Disclosing Party) such Confidential Information belonging to, or disclosed by, the Disclosing Party in the Recipient’s possession or under its control to the Disclosing Party;
(b) the following clauses shall survive the expiration or termination (howsoever arising) of the Agreement: Clause 2 (Licenses, Intellectual Property Rights and ownership), Clause 4 (Financial and payment terms, with respect to any payments owed to Corsearch or any refunds or credits owed to the Customer), Clause 5 (Indemnity), Clause 6 (Liability), Clause 7 (Insurance), Clause 9 (Consequences of termination), Clause 10 (Confidentiality), Clause 12 (Subpoenas, Legal Orders, Demands or Requests for Information), Clause 14 (Notices), Clause 16 (Entire Agreement), Clause 6 (Governing Law and Disputes).
10.1 Each Party shall keep any Confidential Information received from or belonging to the other Party confidential (using such measures as is necessary in accordance with good industry practice to protect commercially sensitive and confidential information) and not disclose such Confidential Information to anyone (except on a need-to-know basis for internal use only where necessary to perform its obligations under the Agreement to its employees or full time contractors bound (in the case of Corsearch) by express written confidentiality obligations) or use such Confidential Information other than to perform its obligations under the Agreement without the prior written consent of the relevant Disclosing Party.
10.2 Confidential Information shall in this context mean: (a) all information of a confidential nature concerning the trade secrets or business dealings, methods of business, customers, clients, suppliers, market information, transactions, plans or affairs of a Party, (b) any proprietary information developed by the Parties in the course of carrying out the Agreement, (c) any document or information marked “Confidential,” “Commercial in Confidence” or otherwise expressly designated as confidential, (d) in relation to the Customer directly, all Content stored, cached or otherwise contained within ZERO, and/or (e) any information which by its nature the Recipient ought reasonably to conclude was confidential information of the other Party in all cases whether encrypted or not and including all copies of the above on any media (including electronic media) whatsoever. Notwithstanding the foregoing, Confidential Information shall not include information (a) which is or becomes or is in public domain, without any fault of the Recipient, (b) which was rightfully in the Recipient’s possession at the time of disclosure by the Disclosing Party, (c) which is disclosed to the Recipient by a third party or third party source without any obligations of confidentiality after the time of disclosure by the Disclosing Party; or (d) which the Recipient can show, by documentary or competent evidence, to have been developed independently by the Recipient without using Confidential Information of the Disclosing Party.
10.3 Corsearch acknowledges and agrees that it does not require any access to or use of any Content in order to perform its obligations under the Agreement and that use of any Content by Corsearch or any Authorized Persons must be pre-approved in writing by the Customer. The foregoing duty shall not apply to any Confidential Information to the extent that disclosure is required to or by any court, tribunal or governmental authority with competent jurisdiction, or by any applicable law.
11. Data Protection Terms
The processing of Personal Data by each Party in relation to the Services will be governed by Corsearch’s Data Protection Terms, which form part of the Agreement, as set forth in Addendum C.
12. Subpoenas, legal orders, demands or requests for information
12.1 If Corsearch receives a valid search warrant, subpoena, legal order, demand or other request for information regarding the Content, from any government entity or court with proper jurisdiction over Corsearch, Corsearch shall, to the extent permitted by applicable law:
(a) immediately notify the Customer of such request;
(b) consult with the Customer regarding Corsearch’s response;
(c) cooperate with the Customer’s reasonable requests in connection with efforts by the Customer to intervene and quash or modify the request; and
(d) upon the Customer’s request, provide the Customer with a copy of Corsearch’s response
12.2 Subject to Clause 12.1(a), Corsearch shall comply with any such request, unless such request has been quashed, withdrawn or modified.
12.3 The Customer shall reimburse Corsearch for Corsearch’s actual costs of complying with any request, including Corsearch’s legal fees, provided such request relates to the Customer’s actions or a lawsuit involving the Customer or any of its clients.
13. Force Majeure
13.1 Corsearch shall not be liable for any delay or failure to carry out its obligations under the Agreement caused by Force Majeure, provided that it promptly gives written notice of the occurrence of the Force Majeure relied on to the Customer and it uses all reasonable endeavours to remove or avoid such Force Majeure as promptly as practicable.
13.2 If due to Force Majeure Corsearch is unable to perform its contractual duties for a total of five (5) business days within the invoice period of one month, the fees for that month will be deducted from payment proportionally. If any Force Majeure event relied upon by either Party pursuant to Clause 13 shall have been continually relied upon for more than 60 successive calendar days by such Party, and is continuing, the Parties shall discuss the renegotiation of the Agreement or the other Party shall be entitled to terminate the Agreement with thirty (30) days written notice to the other Party.
Any notice under the Agreement will be in writing in the name or on behalf of the Party giving it. Notices may be sent by prepaid first class mail, recorded delivery or facsimile to the address of the Party as set out in the introductory section of the Agreement, marked, in the case of the Customer, for the attention of authorized representative and, in the case of Corsearch, for the attention of the CFO or the General Counsel of Corsearch, Inc., or to such other address as such Party may specify to the other Party in writing from time to time.
A notice will be deemed to have been given:
(a) at the time of delivery if delivered personally;
(b) 48 hours after sent my e-mail.
Corsearch may sub-contract its obligations under Clause 3.2 (Hosting and Off Site Back Up of Data). Corsearch may further sub-contract its obligations under the Agreement after written consent by the Customer. Notwithstanding, Corsearch remains liable for any actions or omissions by any Sub-contractors it employs.
16. Entire Agreement
The Agreement sets out the entire Agreement and understanding between the Parties and supersedes any previous Agreement between the Parties relating to its subject matter. Unless otherwise expressly agreed in writing, the Agreement applies in place of and prevails over any terms or conditions contained in or referred to in correspondence or elsewhere, or implied by trade, custom or course of dealing.*
Any term or provision of the Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
No failure or delay by a Party in exercising its rights or remedies shall operate as a waiver unless made by specific written notice. No waiver by a Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No single or partial exercise of any right or remedy of a Party shall operate as a waiver or preclude any other or further exercise of that or any other right or remedy.
17.3 Independent contractors
The Parties are independent contractors and nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture or agency between the Parties; and neither Party shall have any authority or power to bind, contract in the name of or create a liability for or against the other.
Any amendment to the Agreement shall only be effective if in writing signed by an officer or other duly authorized representative of each of the Parties.
Neither Party may assign or transfer any of its rights or obligations under the Agreement or otherwise dispose of the Agreement without the prior written consent of the other Party, except as otherwise provided for in the Agreement, and to not be unreasonably withheld. Notwithstanding the above, Corsearch shall be entitled to assign or transfer the Agreement in connection with a change of control, merger, or sale of all or substantially all of its assets.
17.6 Governing Law and Disputes
17.6.1 The Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, U.S.A. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The United States Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement.
17.6.2 Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgement on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be New York, New York.
17.6.3 Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.
*These Terms & Conditions are effective as of 5/18/20. For Yellow Brand Protection or Pointer Brand Protection existing client(s), Terms & Conditions in place prior to 5/18/20 and as of the execution of an existing and presently valid agreement with said companies, will remain in force until the agreement expires or is otherwise terminated.