iSOCRATES Terms & Conditions

This Managed Services Terms & Conditions Agreement (“Agreement”) is entered into by and between iSOCRATES LLC, having an address at 200 Central Avenue, 4th Floor, St. Petersburg. FL 33701 (“iSOCRATES”) and the entity who executes a Managed Services Agreement (“MSA”) or any other Agreement with iSOCRATES into which this Agreement is incorporated by reference (“Company”). This Agreement is hereby attached and incorporated into each such MSA and/or other agreement executed by Customer. By entering into an MSA or other agreement which incorporates this Agreement by reference, Company hereby agrees to be bound by and abide with the terms and conditions of this Agreement. This Agreement is effective upon the execution by iSOCRATES and Customer of an MSA and/or other agreement which incorporates this Agreement by reference (the “Effective Date”) and shall remain in effect for so long as each such MSA and/or other agreement is in effect.
WHEREAS, Company requires some combination of data, media, marketing, creative, development, and / or technical services; and

WHEREAS, Company desires to appoint iSOCRATES, and iSOCRATES desires to accept the appointment, as an end-to-end provider of MADTech Resource Planning and Execution^TM services as defined by a Managed Service Agreement (“MSA”) order form.

NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, iSOCRATES and Company, intending to be legally bound, do hereby agree as follows:

1. Definitions.

All terms used in this Agreement have the meanings set forth below.

“Advertiser” means any advertiser, advertising agency, media buying service, DSP, agency trading desk or other similar entity that, whether directly or through its advertising agency, promotes itself, its brands or its products or services.
“Advertisement” means the advertisements sold by iSOCRATES for display on the Inventory through advertising banners, text links, interstitial pages and similar promotional devices.
“Ad Revenue” means the gross revenue received by iSOCRATES from Advertisers due to the sale of Advertisements on the Inventory.
“Audience Tools” means the functionality provided in one or more of the Managed Platform(s) that enables advertising campaigns to be targeted to particular types of users (e.g., avid golfers). Audience Tools may utilize audience data provided by Company (i.e., first party data), third parties (e.g., BlueKai) or iSOCRATES.
“Data” means, collectively, Performance Data, Site Data and User Volunteered Data (each as defined in Section 7).
“Directly Identifying Information” means data that directly identifies or reasonably can be used to directly identify an individual, including name, raw (unhashed) email address, postal address, phone number, or government identifier. For the avoidance of doubt, Directly Identifying Information does not include (a) cookie identifiers; (b) advertising identifiers assigned by mobile devices; (c) IP addresses; (d) other forms of device identifiers generally accepted for use in relation to advertising; and (e) demographic, interest, or browsing behavior data associated with such identifiers.
“Discrepancy” means any difference between Company measurement and iSOCRATES measurement. The numbers reported by iSOCRATES shall be the controlling measurement for all purposes and shall be the basis for the fees due herein.
“Insertion Order” means a mutually agreed upon document regarding business terms, including applicable Inventory and fees to be provided in connection with Advertisements and / or Managed Services.
“Inventory” means the mutually agreed upon portions on the Media Services for the placement of Tags and/or display of Advertisements.
“iSOCRATES Technology” means all hardware, software, technology, patents, trademarks, copyrights, trade secrets, know-how, processes and other intellectual property owned by, and used by, iSOCRATES under this Agreement.
“Managed Service” means technology-enabled and/or labor-based digital media and marketing services. These services include, but are not limited to, operation of software platforms on behalf of Company to implement and manage data-driven digital media and marketing systems, solutions, processes, and controls. Managed Services may be purchased by Company on either a Managed Service Platform (MSP) or Business Process Outsourcing (BPO) fee-for-service basis.
“Media Service” or “Media Services” means the web sites, mobile sites, apps or other media owned or operated by Company from which the parties mutually agree to make Inventory available in connection with this Agreement.
“Fees” means the fees shown in this Agreement and the fees shown in the Platform user interface for any additional optional features and services that Company uses.
“Revenue Share” means the percentage of Ad Revenue to be paid to Company as set forth in an Insertion Order.
“Tag” means a unique tag, pixel or graphical element provided by iSOCRATES to Company to be placed by Company on a fixed location on a Media Service designed for the collection of Data and/or delivery of Advertisements.

2. Services.

A. Managed Services. Company desires to engage iSOCRATES to manage some combination of data, media, marketing, creative, development, and / or technical services (collectively, “Managed Services”). The details of Managed Services will be agreed to in writing and signed by the parties (the “Insertion Order”).
B. Reporting. Company will have access to iSOCRATES’ MADTechBI^TM online reporting interface. All information from the interface is solely for the internal use of Company and its Clients.
C. Campaign Analytics. If Company requests campaign analytics such as click and conversion tracking, iSOCRATES may append certain parameters to the URL associated with Company’s ad to enable the campaign analytics (“Campaign Analytics Code”). Company may not edit or delete any Campaign Analytics Code without iSOCRATES’ prior written consent and must promptly remove all Campaign Analytics Code upon termination of this Agreement.
D. Audience Tools. Fees for use of Third Party Audience Tools will be as shown in the MSA or agreed in advance in writing. Company may use the Audience Tools solely for the purpose of managing campaigns through managed platform(s) and shall not attempt to extract or recreate the data underlying the Audience Tools or assemble similar data or audience segments itself (directly or indirectly through a third party).
E. APIs. iSOCRATES may make application program interfaces or client-side software (“APIs”) available to Company for additional fees which will be set forth in an Order Form. If Company or a Third Party (as defined below) implements the APIs, they agree to use the most recently released version of the APIs (no later than within 6 months following the release date of such version). Company may not create (and shall not permit any Third Party to create) more than a single API or share its API key or access information with another party without iSOCRATES’ prior written consent.
F. Beta Features. iSOCRATES may offer to Company the right to use certain experimental features from time to time (“Beta Features”). All Beta Features are provided on an “as is” and “as available” basis, without any representations, warranties, covenants or obligations of any kind, and may be terminated by iSOCRATES at any time. Any use by Company of Beta Features is solely at Company’s own risk.
G. Direct Tags. To facilitate campaigns agreed upon directly between Company and publishers, at Company’s request, iSOCRATES will provide to the publishers iSOCRATES tags to be implemented on the publisher’s Sites and technical specifications for their implementation. Company shall be solely responsible for obtaining written permission from the publishers to implement the iSOCRATES tags.
H. Direct Bill to Company by Inventory Partner. In the event that Company enters into an agreement with an Inventory Partner for Direct Bill Inventory, Company will provide written notification (email sufficing) to iSOCRATES along with documentation (or written acknowledgement by the Inventory Partner) of the Direct Bill Inventory arrangement. If and to the extent that the Inventory Partner releases iSOCRATES from all payment obligations with respect to such Direct Bill Inventory, iSOCRATES will not look to Company for payment of such Direct Bill Inventory. Company acknowledges that the Direct Bill Inventory DealIDs shall be marked as “direct bill” by the Inventory Partner. For the avoidance of doubt, with respect to Direct Bill Inventory, any costs of data licensed by or on behalf of Company through the Platform and any Fees will be invoiced in accordance with the Agreement.
I. Direct Seats. In the event Company holds its own seat on an exchange and desires for iSOCRATES to provide payment services to such exchange, the parties shall work together to set up such seat and payment mechanism, and iSOCRATES shall charge Company a fee which shall be set forth in an Order Form.
J. Ad Tags. If Company uses the iSOCRATES ad server, Company is responsible for inputting ad tags so that they are functional. Each ad tag may relate to one advertiser only (but can be related to multiple ads/creative for that advertiser).
K. Connected TV. Purchases of connected TV inventory may be subject to additional terms and conditions, which iSOCRATES will provide to Company in writing (email sufficing). Creatives intended to be served on connected TV inventory must be provided to iSOCRATES at least two full business days in advance of any campaign launch.
L. Additional Features and Services. iSOCRATES may roll out additional features or services from time to time, which may require additional fees and terms and conditions as set forth in the Platform or by separate agreement between the parties.
M. Third Party Access. Company is responsible for all activity under its account, including maintaining the confidentiality of its account logins and passwords and ensuring that all reporting and data usage complies with this Agreement. Company may grant its Clients access to its account, data, or reporting (via the Platform, APIs or otherwise) (collectively “Account Access”) and may request in writing or via the Platform that iSOCRATES approve and grant Account Access to non-Client third parties. iSOCRATES reserves the right to reject Account Access to any non-Client third parties. Clients and iSOCRATES approved non-Client third parties are collectively referred to herein as “Third Parties.” Company shall ensure that all Third Parties (a) use Company’s account information solely for Company’s benefit and solely as required to provide services to Company (or if such Third Party is a Client, then for such Client’s internal use) and for no other purpose, and (b) are aware of, and comply with, all restrictions for use of the Services, Platform, and data described in this Agreement. Company shall be liable for any breach of this Agreement by any Third Party, as if Company committed such breach itself. Additional terms, conditions, and fees for Account Access may apply.
N. Insertion Orders. The parties may execute one or more Insertion Orders and / or Demand Agreements in connection with this Agreement from time to time to identify and set the terms for specific projects under this Agreement. Each Insertion Order and / or Demand Agreement shall reference this Agreement, be signed by both parties and shall be substantially in the form set forth on Exhibit A of the order form.
O. Cooperation. The parties shall make commercially reasonable efforts to work together to enable compatibility between their systems. In the event certain customizations are necessary to ensure that Advertisements and / or Managed Services accepted by the Company are properly served, Company agrees to reasonably cooperate with iSOCRATES in order to test, update and or modify the integration between the parties. Should Company fail to perform any of its obligations under this Agreement, iSOCRATES shall not be responsible for any delay or other consequences due to such failure.
P. Non-Circumvention. Company agrees that it will not, directly or indirectly, contact any Advertiser and / or Vendor brought to the partnership by iSOCRATES without first obtaining agreement via written correspondence (i) whose Advertisements are displayed in the Inventory during the campaign flight for such Advertisements and for a period of ninety (90) days thereafter or (ii) with whom iSOCRATES is known by Company to be negotiating with to include such Advertiser’s Advertisements in the Inventory, to solicit advertising for the Media Services or (iii) such Vendor had a previous contract with Company. If Company contracts with any Advertiser for Advertisements and / or Vendor for services in violation of the foregoing, the parties shall negotiate in good faith the appropriate payment of fees to iSOCRATES comparable to those previously paid for such Advertisements and / or services to iSOCRATES. The foregoing shall not apply to the extent that Company has a documented and material pre-existing relationship with such Advertiser and / or Vendor. For avoidance of doubt any Advertiser and / or Vendor that Company has worked with in the past or is found to have approached Company directly will not be in violation of this clause. Company reserves the right to optimize demand partners in the marketplace during the term of this agreement.
Q. Inventory. If necessary, Company agrees to work in good faith with iSOCRATES to provide iSOCRATES with the ability to bid and acquire Inventory as reasonably requested by iSOCRATES. Company shall ensure that, except for portions of the Media Service clearly designated for user-generated content, no portion of the Media Service contains or is one click away from content that is defamatory, abusive, obscene, profane or offensive; infringes or violates another party’s intellectual property rights (such as music, videos, photos or other materials without written authority from the owner of such materials to post on the Media Service); violates any party’s right of publicity or right of privacy; is threatening, harassing or that promotes racism, bigotry or hatred of any kind against any group or individual; promotes or encourages violence against a person or damage or destruction of property; is inaccurate, false or misleading in any way; is illegal or promotes any illegal activities; or contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
R. Privacy. Company shall ensure that (i) the Media Services comply with all applicable laws, rules and regulations, including but not limited to, making all consumer disclosures as required by best industry practices, (ii) the Media Services do not target children under the age of 13 and, based on the overall content of the Media Services, are not likely to attract children under the age of 13 as its primary audience, (iii) it shall comply with all principles and guidelines, including the Self-Regulatory Principles for Online Behavioral Advertising, administered by the Digital Advertising Alliance and (iv) the Media Services’ manner of presenting or identifying any so-called “native” or “sponsored” ads complies with all applicable laws, rules and regulations, including but not limited to, the Federal Trade Commission’s Enforcement Policy Statement on Deceptively Formatted Advertisements.

3. Payments.

A. Fees. Monthly MSA fees are due the first of each month in advance, unless otherwise specified in the MSA Order Form. For avoidance of doubt MSA work will not commence until the first month’s payment is received. If the project does not start on the first of the month the initial fee shall be the prorated monthly fee PLUS the next month’s fee. Unless the parties agree otherwise in writing, iSOCRATES will invoice and Company will pay in US dollars. For any invoice that is not paid in full within 45 days of the invoice date, iSOCRATES reserves the right to (a) charge interest of 2% per month (or the maximum allowed by law, whichever is lower), and (b) if Company does not pay an overdue invoice in full within 5 days of receiving a notice of nonpayment, suspend Services or terminate this Agreement. If Company chooses to pay its invoice via credit card, a 3% convenience fee shall be added to such amounts. All payments due under this Agreement shall be made without setoff or deduction. For the calculation of any revenue share related to MSA services, the Impressions verified by iSOCRATES shall be used for all reporting and payment purposes. iSOCRATES shall pay Company as set forth on the MSA Order Form or the Insertion Order. All amounts hereunder are in United States dollars and do not include sales, use, value-added or import taxes, customs duties or similar taxes that may be assessed by any jurisdiction. In the event that withholding taxes, or any other similar taxes are imposed by any jurisdiction on the transactions pursuant to this Agreement, iSOCRATES may withhold such taxes.
B. Payment Liability. Monthly license fees are due the first of each month in advance. Any revenue share invoices are calculated on a NET revenue basis and due net 30 day of receipt of invoice, unless otherwise specified. Net revenue is gross revenue less fees. iSOCRATES shall pay the applicable Revenue Share, via ACH, Pay Pal, or Credit Card, at iSOCRATES’ option, subject to receipt of the Company Reports confirming monthly iSOCRATES measurements and fee calculation, unless stated otherwise in the signed Insertion Order. Email correspondence from Company will be sufficient to confirm iSOCRATES reports. Any third party vendor service negotiated by iSOCRATES on behalf of Company will be approved by Company. Direct use services will be billed to Company directly. Any shared third party vendor services managed by iSOCRATES and used by Company will be billed to Company each month as a transparent pass through cost. For example, shared services may include, but are not limited to, ad serving, data serving, viewability, brand safety, ad blocking, video player, among others. Revenue share calculations shall be net of fees.
C. Expenses. Each of Company and iSOCRATES will pay for all of its own expenses that arise under this Agreement.

4. Term.

A. Term. This Agreement shall commence on the Effective Date and shall continue for an initial term of one (1) year, unless stated otherwise in the MSA Order Form. After the expiration of the initial or any renewal term, this Agreement shall automatically renew for additional one (1) year periods. Either party may terminate this Agreement provided that the terminating party provides at least sixty (60) days advance written notice prior to the date of the renewal. iSOCRATES may terminate this agreement for any reason or no reason with thirty (30) days written notice. This Agreement or any individual Insertion Order shall terminate sixty (60) days after a party’s receipt of written notice that such party is in material breach of any of the terms or conditions set forth in this Agreement or such Insertion Order, unless such party cures such breach within said sixty (60) day period.
B. Effect of Termination. Upon termination of this Agreement: (i) all rights granted in this Agreement by either party to the other party shall automatically terminate and be of no further force or effect; (ii) each party will cease using or displaying the intellectual property of the other party within a reasonable period of time; (iii) each party shall return or destroy all Confidential Information relating to the other party then in its possession, except as set forth in Section 6 below; and (iv) Company will be entitled to the payment of all unpaid amounts under Section 3 and the related Order Form earned as of the date of termination, provided such termination is not based upon Company’s breach of this Agreement.
C. Survival of Certain Provisions. Not with standing the foregoing, except as otherwise provided herein, the rights and responsibilities of the parties under Sections 5(B), 6, 7 and 9-13 shall survive indefinitely.

5. Confidentiality.

A. Confidential Information. In connection with this Agreement, each party may disclose, or may learn of or have access to, certain confidential or proprietary information owned by the other party (“Confidential Information”). Confidential Information means any data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, software, plans, financial information or customers. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party’s possession free of any confidentiality obligations with respect thereto; (v) can be documented as independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction.
B. Obligations. Except as expressly permitted in this Agreement, each party shall maintain the Confidential Information of the other party in strict confidence and shall not disclose, publish, copy or use any part of such Confidential Information, except as necessary to perform obligations and exercise rights in connection with this Agreement. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis, provided that, it shall be liable for the acts or omissions of any third party to which it provides Confidential Information. Upon the termination or expiration of this Agreement, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party, provided that, neither party shall be obligated to purge archived information that is retained pursuant to its normal document retention practices or required to be maintained by applicable law if the obligations of this Section 9 continue to be strictly observed.

6. Representations and Warranties; Intellectual Property.

A. Representations and Warranties. Each party represents and warrants to the other party that: (i) it shall perform its obligations hereunder in a workmanlike and professional manner; (ii) it has sufficient expertise and experience to perform its obligations hereunder; (iii) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (iv) the execution of this Agreement and the performance of its obligations hereunder, do not and will not violate any agreement to which it is a party or by which it is bound; (v) it shall at all times be in compliance with all applicable laws, rules and regulations in connection with this Agreement; and (vi) it has not relied upon any projections or guaranties of sales in entering into this Agreement.
B. Intellectual Property. As between iSOCRATES and Company, iSOCRATES is the exclusive owner of all rights, title and interest in and to the iSOCRATES Technology (including any enhancements, modifications or improvements thereto or derivatives thereof) and any materials provided to Company by iSOCRATES through the iSOCRATES Technology. Any improvements, enhancements or modifications to the iSOCRATES Technology created, suggested or requested by Company, including any and all trademarks, patents, copyrights or trade secrets in connection therewith (collectively, “Improvements”), shall be automatically licensed perpetually, and without limitation or obligation, to iSOCRATES. Except as otherwise expressly set forth herein, no rights, license, title or interest to any of the foregoing or any other proprietary rights, intellectual property or Confidential Information, express or implied, are granted by iSOCRATES to Company under this Agreement.

7. Ownership and Data Usage.

Company Data. As between iSOCRATES and Company, Company owns all right, title and interest in (a) all data Company imports into the Platform, including but not limited to information about advertising campaigns and Company’s account (“Company Data”), and (b) the ads Company provides. iSOCRATES may use Company Data solely to provide the Services available under this Agreement.
Business and Campaign Data. Each party may use the data generated by Company’s use of the Services (“Business and Campaign Data”) as follows. Company may use Business and Campaign Data for any internal business purpose provided that (a) it complies with its privacy policy, (b) it complies with the terms of this Agreement, and (c) it does not disclose data that describes or reflects the performance of any Platform(s) (or any other Services), or any publisher or Inventory Partner, to other parties except Company’s Third Party service providers who are under confidentiality restrictions, and subject to the terms of this Agreement. iSOCRATES may use Business and Campaign Data (i) to provide the Services, (ii) internally for any other business purpose (e.g., fraud detection or financial reporting), and (iii) externally if such data is aggregated with other data such that third parties cannot attribute the data to Company (e.g., publishing industry trends on average CPMs). Company acknowledges that Inventory Partners and their publishers have access to Company Data and other information in connection with the purchase of their inventory.
Feedback. Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by Company to iSOCRATES relating to any Platform(s), the Services or any other services or products of iSOCRATES (collectively, “Feedback”) are provided voluntarily. Company agrees that all Feedback may be used by iSOCRATES without compensation, accounting or attribution to Company, and Company grants a perpetual, irrevocable, fully paid up right and license to the Feedback.
Reservation of Rights. Aside from the rights granted herein, neither party grants the other any other right, express or implied, and each party reserves all rights not expressly granted hereunder. Company shall place all Tags, including Passback tags, at no cost to iSOCRATES, on the Inventory and Media Service as instructed by iSOCRATES and shall remove such Tags immediately upon notice from iSOCRATES. Passbacks and Passback Tags shall be used at the sole discretion of iSOCRATES. Company hereby authorizes iSOCRATES to collect data in connection with the Tags as set forth herein. Company shall not interfere with the proper operation of the Tags. Company shall own all Data, except for User Volunteered Data (if any) which shall be owned by the respective Advertiser. Company hereby grants iSOCRATES a non-exclusive, worldwide, royalty-free, perpetual right and license to use the Performance Data and Site Data for any purpose, provided that, iSOCRATES shall only use Site Data in connection with a Insertion Order or in connection with the optimization and delivery of Advertisements to the Inventory and / or in the management of Vendor platforms and technology. “Performance Data” is data collected via the Tags regarding a user’s interaction with the Media Services and/or in connection with the delivery of an Advertisement (e.g., number of impressions, interactions, and header information), but excluding Site Data. “Site Data” is any data that is (a) preexisting Company data used by iSOCRATES; (b) gathered during delivery of an Advertisement that identifies or allows identification of Company or the Media Service; or (c) entered by users on the Media Service other than User Volunteered Data. “User Volunteered Data” is personally identifiable information collected from individual users by Advertisers during delivery of an Advertisement where it is expressly disclosed to such individual users that such collection is solely on behalf of an Advertiser.

8. Publicity.

iSOCRATES shall have the right to identify Company as a Company with iSOCRATES, either on an individual basis or as part of a list of some or all of iSOCRATES’ Companies. Company agrees to allow iSOCRATES to use Company’s name and logo and Media Service for promotional purposes in connection with this Agreement.

9. Indemnification.

A. iSOCRATES. iSOCRATES agrees to defend, indemnify and hold harmless Company, its subsidiaries, affiliates, successors and assigns, and each of their officers, directors, agents, contractors, subcontractors and employees, against and from any and all claims, liabilities, damages, fines, penalties or costs of whatsoever nature, including reasonable attorney’s fees and expenses (collectively, “Losses”), to the extent arising out of any third party claims in connection with: (i) the violation of any intellectual property rights by the iSOCRATES Technology; (ii) the content of the Advertisements, to the extent iSOCRATES is indemnified by the Advertiser; or (iii) the violation by iSOCRATES of any law, rule or regulation.
B. Company. Company agrees to defend, indemnify and hold harmless iSOCRATES, its subsidiaries, affiliates, Advertisers, successors and assigns, and each of their officers, directors, agents, contractors, subcontractors and employees, against and from any and all Losses to the extent arising out of any third party claims in connection with: (i) the Media Service; (ii) unauthorized use of the Advertisements; or (iii) the violation by Company of Section 2(F).

C. Procedure. The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity (provided that a failure or delay in providing such notice shall not relieve the indemnifying party’s obligations, except to the extent prejudiced by such failure or delay); (ii) granting complete control of the defense and settlement to the indemnifying party, provided that the indemnifying party will not acquiesce to any judgment or settlement without the indemnified party’s prior written consent, unless it obtains a full and final release of all claims against the indemnified party and such judgment or settlement does not impose any requirements or restrictions upon the indemnified party; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense and settlement of such claim. The indemnifying party shall provide the indemnified party the option to engage separate counsel, at the indemnified party’s expense, to participate in any claim giving rise to indemnification hereunder. The indemnifying party may settle any claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.

10. Disclaimer; Limitation of Liability.

Except as set forth in this agreement, the isocrates technology and services are provided to company “as is” and isocrates expressly disclaims all warranties, express, implied or statutory. Isocrates does not warrant that the isocrates technology shall operate completely error-free or without interruption. Isocrates shall not be liable for any decisions made by company through use of the isocrates technology and services. Except for obligations of indemnification, a breach of confidentiality or violation of the other party’s intellectual property rights, (i) in no event will either party be liable to the other party for any special, indirect, incidental or consequential damages arising out of or in connection with this agreement; and (ii) isocrates’ cumulative liability to client will not exceed the amounts paid under this agreement during the most recent twelve (12) month period.

11. General.

A. Independent Contractors. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. Each party shall ensure the timely disposition of all of its respective employee matters in connection with their organization, including but not limited to, employee benefits, insurance, withholdings, taxes and similarly related employee-related matters.
B. Miscellaneous. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this Agreement.
C. Assignment. Neither party may assign this Agreement to any other entity without the prior written consent of the other party, whether by operation of law or otherwise, except in connection with a merger, change of control or sale of substantially all of its assets to a party that is not a direct competitor of the other party. This Agreement shall inure to the benefit of the parties’ permitted successors and assigns.
D. Execution; Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.
E. Entire Agreement. This Agreement sets forth the entire agreement between the parties on this subject matter contained herein and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. No amendment or modification of this Agreement shall be made except by a writing signed by both parties.
F. Notice. Any official notice given pursuant to this Agreement shall be sent to the other party at the address stated in the opening paragraph of this Agreement by: (i) certified mail return receipt requested, (ii) overnight courier or (iii) confirmed facsimile or electronic mail followed by a hard copy by one of the prior methods.
G. Force Majeure. Neither party shall be in breach of this Agreement or responsible for damages caused by delay or failure to perform, in full or in part, its obligations hereunder, provided that there is due diligence in attempted performance under the circumstances and that such delay or failure is due to circumstances substantially beyond the control of the party to be charged, including act of God, failure of telecommunications systems, strikes, government sanctioned embargo, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier.
H. Choice of Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Florida and each party submits to exclusive jurisdiction and venue in the courts located in Florida.

Revised effective November 19, 2022

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