Terms of Service

Last revised on: July 28, 2022

These Terms of Service (together with the Electica Privacy Policy, the “Agreement”) are entered into by You and govern your relationship with Electica Europe Ltd. and their affiliates (“Electica”). For the avoidance of doubt, Electica UK Ltd and Electica USA, LLC are the affiliates of Electica. The terms “You”, “Your”, and “Customer” in this Agreement will refer to the entity, company, organization, partnership, individuals, and their affiliates who access the Platform.

The Agreement shall govern the relationship between the Parties relating to the Platform (as defined below) offered by Electica on www.advocate-digital.com (the “Website”) or on a mobile application owned and operated by Electica which provides access to the Platform (the “App”). The date on which you first log into your Advocate Account (as defined below) via the Website is hereinafter referred to as the “Effective Date”.

Your use of the Platform constitutes your agreement to all such terms, conditions, and notices in effect at such time. You hereby represent and warrant that: (i) you are lawfully able to enter into and perform a legally binding contract; (ii) if you are entering this Agreement on behalf of your employer and you are authorized to do so; (iii) have read these Terms of Use and the Electica Privacy Policy found at https://advocate-digital.com/privacy-policy/ which is incorporated by reference to this Agreement; and (iii) agree to be bound by this Agreement. If you do not accept and agree to be bound by all of the terms of this Agreement, including the Electica Privacy Policy, do not access the Platform through the Website, install the App, or use the Platform.

Electica may update or revise this Agreement from time to time. You agree that you will review this Agreement periodically. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Platform, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by Electica any use of the Platform and the Site is subject to the version of this Agreement in effect at the time of use.

1. The Platform

1.1 In General. Electica offers a native, display, audio, CTV (connected TV), and video advertising internet-accessible platform called Advocate (the “Platform”) that allows Customer to buy, track, and manage digital media (“Media”) for the purposes of delivering Customer’s native, display, audio, CTV, and video advertisements (“Ads”). Based on Customer’s specified attributes, the Platform utilizes Electica’s proprietary technology to bid on Media on Customer’s behalf, and offers manual and automated methods for meeting Customer’s advertising objectives. All Ads are subject to review and approval by Electica. Electica, may, in its sole discretion, decide not to deliver an Ad or any Media that it deems to be of poor technical quality, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, hateful, racially, ethnically, not in line with Electica’s values, or otherwise objectionable

2. Right to Access and Use the Platform

2.1 Right to Use. Subject to the terms and conditions of this Agreement, including the payment of the applicable fees, commencing as of the Effective Date and for the duration of the Term (as defined below), Electica hereby grants to Customer non-exclusive, non‐transferable, revocable right to access and utilize the Platform in accordance with the terms of this Agreement.

2.2 Restrictions on Use. Any rights not granted herein are strictly reserved by Electica. Customer shall not, and shall not permit any third party to:

(a) re-license or sublicense, or lease the Platform to any third-party;

(b) reverse engineer, decompile, disassemble or translate any software used by Electica to deliver the Platform (the “Software”), or otherwise attempt to view, display or print the Software’s source code;

(d) utilize the Platform for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;

(e) to transmit, or procure the sending of, any advertising or promotional material including any “junk mail,” “chain letter,” “spam” or any other similar solicitation;

(f) to impersonate or attempt to impersonate Electica or their affiliates, Employees of Electica, another Customer, or any other person or entity;

(g) engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined by us, may harm the Customer or users of the Platform, or expose them to liability; or

(h) Otherwise attempt to interfere with the proper working of the Platform. If you become aware of any actual or threatened activity prohibited by this Section, Customer shall without undue delay notify Electica of such activity and take reasonable and lawful measures asked of it by us to stop the activity or mitigate its effects.

2.3 Reservation of Rights. Electica shall retain ownership of all intellectual property rights associated with the Platform, all ancillary documentation and technology associated therewith, and any enhancements or modifications thereof. Neither party shall use the trademarks or trade names of the other without express consent.

2.4 Audit Rights. Electica reserves the right to monitor and audit Customer and its authorized users’ usage of the Platform for the purpose of (among others) ensuring compliance with the terms of this Agreement. Any such audit may be carried out by Electica or a third party authorized by Electica, at Electica’s expense.

2.5 Accounts. In order to use the Platform, Customer must log into an account (an “Account”) created for the Customer, upon request, by Electica. Customer shall be the sole user of the account login credentials provided by Electica. Customer shall not share or provide the account login information to any third party.

2.6 Security Requirements. Electica shall implement and maintain the appropriate safeguards and controls to deter and for the detection, prevention and correction of any unauthorized intrusion, access or use of the Website, Platform, and App. You acknowledge and agree that notwithstanding the security requirements, such methods and procedures may not prevent unauthorized electronic intruders from accessing the Platform through the Internet or through other forms of electronic communication. Except for the maintenance of appropriate firewall and safeguards in compliance with the security requirements, which are designed to frustrate access from unauthorized electronic intruders, Electica shall not be liable to Customer, and hereby disclaims responsibility, with respect to any action, destructive or otherwise, by any unauthorized electronic intruder.

2.7 Maintenance. From time to time, it will be necessary for Electica to perform maintenance on its system. Such maintenance includes routine maintenance to ensure the continued provision of the Platform through the continued operation of Electica’s system or upgrading, updating or enhancing its system. Electica shall use its commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of its system to Customer. To the extent Electica is able, Electica shall notify Customer in advance of any scheduled maintenance by posting a message on the Website or by sending an email to the designated Customer representative of the scheduled maintenance time and the anticipated duration of such maintenance.

2.8 Reasonable Efforts. Electica shall, unless expressly stated otherwise, exercise commercially reasonable efforts in meeting our obligations under this Agreement and in the provision of services. This shall mean undertaking ordinary and reasonable measures that a prudent person under similar circumstances would use. The exercise of such reasonable efforts, when required, does not guarantee achieving a particular result. Our efforts do not require us to take every conceivable measure or to take any measures that sacrifice our own economic and business interests or suffer any unreasonable and disproportionate detriment to our expected benefits under this Agreement.

3. Customer’s Rights and Obligations

3.1 Customer’s Responsibilities. In addition to its other obligations contained in this Agreement, Customer shall:

(a) be responsible for operating, supporting and maintaining Customer’s systems, including computer hardware and software, necessary for Customer to access the Platform;

(b) be responsible for procuring and maintaining communication Platforms, including high speed Internet connections between Customer’s systems and Electica’s system;

(d) comply, at all times, with all applicable legal and regulatory requirements and with Electica’s conduct and security policies in respect of the use of the Platform.

3.2 Eligibility Requirements. The Platform is offered and available to users who are eighteen (18) years of age or older. By using this Platform, you represent and warrant that you are of legal age to form a binding contract with the Customer and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Platform. Electica retains the right to disable or deny any access to the Website, Platform, or App including any password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

3.3 Customer’s Negative Covenants. You shall not:

(a) use the Platform for improper or unlawful purposes;

(b) take any action that imposes an unreasonable or disproportionately large load on Electica’s system;

(c) use the Platform or the software to develop any derivative works or any functionally compatible or competitive software; or

(d) copy or download any software used by Electica to provide the Platform and which is contained within Electica ‘s system.

(e) In the case of data which may be provided by or provisioned through Electica, Customer shall not:

(i) resell, rent, lease, sublicense, or transfer such data to any third party; (ii) use such data in any manner except for marketing purposes and the delivery of online advertisements; or

(iii) merge or combine such data with personally identifiable information.

3.4 Representations and Warranties of Customer. In addition, Customer represents, warrants and covenants that:

(a) Ads delivered or served through the Platform will not include any materials or links to materials that are unlawful, harmful, spam, defamatory, libelous, abusive, threatening, pornographic or otherwise objectionable, or infringes or misappropriates the patents, copyrights, trademarks, trade secrets or other intellectual property rights of any person; and

(b) none of the Ads will contain any viruses, Trojan horses, worms or other disabling devices or harmful components intended to damage, detrimentally interfere with, intercept, or expropriate any system.

3.5 Ownership of and License to Use Ads. Customer shall retain ownership of all intellectual property rights to the Ads and any ancillary advertising materials provided to Electica. Customer hereby grants to Electica the right and license to promote and market its Ads through the Platform. Customer hereby authorizes and grants to Electica a non-exclusive, transferable, assignable, irrevocable, royalty-free, worldwide, and perpetual license to use Customer’s Ads and any of Customer’s trade-marks, trade names, Platform marks, logos, character names, and other intellectual property provided by Customer in connection with Your use of the Platform.

4. Fees; Invoicing and Payment

4.1 Fees. Customer agrees to pay to Electica:

(a) For all Media and/or Ad(s) purchased by the Customer through the Platform (herein “Fees”): and

(b) An amount to be paid on a monthly basis for access and use of the services provided by the Platform (herein “Subscription”).

4.2 Deposit and Escrow. Prior to the date of the Customer’s first purchase of any Media or Ads, whichever shall occur first in time, Customer shall deposit a sum as agreed upon between the Customer and Electica (herein “Deposit”) to be held in an escrow account for the payment of all Fees and the Subscription as defined in this Agreement (herein “Escrow Account”). Media and/or Ad(s) cannot be purchased by a Customer prior to Electica’s receipt of the Deposit. Deposit will, in total, be posted in the Customer’s Escrow Account. Customer shall be required to make additional Deposit(s) in amounts necessary to cover any and all Fee(s) or Subscription(s) in excess of the amounts in the Customer’s Escrow Account.

4.3 Payment.

(a) All payments due under this Agreement shall be made by Electronic Transfer of Funds (EFT) through bank transfer or credit card payment. Upon the creation of an Account, Customer shall select a local currency by which they shall make all Deposits may pay all amounts due and payable to the Customer’s Escrow Account. Any fees or costs associated with any Payments made hereunder shall be charged, or invoiced by Electica, to the Customer which may include, but not be limited to, any and all credit card processing fees or any shortfall resulting from currency exchange rates.

(b) Customer hereby authorizes Electica to withdraw any Fees or Subscription owned and payable from their Escrow Account to pay the costs.

(c) Where Customer either fails to pay any amount in accordance with this Agreement or does not maintain the balance in their Escrow Account to pay any Fees detailed in Section 4.1, Electica May, at its sole discretion:

(i) Restrict the Customer from purchasing Ads or Media and until the Customer has submitted a Deposit to pay for all outstanding Fees and Subscription costs in accordance with the requirements of Section 10.3 of this Agreement; or

(ii) permit the Customer to run a negative balance and Electica shall have the right, in addition to any other rights or remedies available to it, to charge the Customer interest on such overdue amounts at the rate of one percent (1%) per month calculated daily, compounded monthly.

(d) Customer may dispute any amount due for Fees or Taxes (as defined below) in good faith, and Electica may delay withdrawal of the payment amount from the Customer’s Escrow Account pending the resolution of the dispute.

4.4Taxes.

(a) Customer shall be responsible for the payment of any and all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement. If Electica has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Electica will notify the Customer via their Account that such taxes are owned by the Customer and will accordingly be applied to their Escrow Account, unless Customer provides Electica with a valid tax exemption certificate authorized by the appropriate taxing authority.

(b) All Fees and Subscriptions detailed in Section 4.1 shall be exclusive of all Taxes imposed by any Governmental Authority on any amounts payable by Customer under this Agreement including taxes on goods and services, any sales or use tax, a Value Added Tax (VAT), personal property, gross receipt, franchise, excise taxes, assessment or duties, or any similar type of tax, or any interest or penalty related thereto (collectively “Taxes”) which are or may be imposed by law on Electica, Customer or their affiliate. Irrespective of whether Electica needs to collect said taxes or Customer is required to account for said taxes and remit them to any taxing authority or jurisdiction occasioned by, relating to any goods or services provided for under, or in connection with, this Agreement.

5. Privacy and Data

5.1 Privacy. The Electica Privacy Policy (available at https://advocate-digital.com/privacy-policy/) applies to the collection, use and disclosure of any personal information that Customer or users may provide to Electica. The parties shall comply with any laws and regulations pertaining to the privacy protection of personal information. Each party shall reasonably cooperate with the other party’s specific requests as necessary to facilitate such party’s compliance with any applicable privacy laws and regulations.

5.2 Customer’s Responsibilities. Customer shall comply with applicable Data Protection Laws. Customer is solely responsible for any data submitted or transferred by Customer to Electica and any data collected by Electica from or for Customer pursuant to or in connection with this Agreement, including personal information (“Customer Data”). Additionally:

Customer warrants that it will not transfer to Electica any Customer Data that has not been lawfully processed in accordance with applicable Data Protection Laws. For greater certainty, Customer warrants that it will obtain consent from data subjects, where such consent is required by Data Protection Laws, to use any Electica trackers, including, but not limited to, conversion pixels, retargeting pixels, or look-alike pixels.
Customer shall identify any Customer Data originating in the European Union, the European Economic Area, Switzerland or the United Kingdom (“European Customer Data”) to Electica. Customer acknowledges that failure to properly identify European Customer Data shall result in Electica rejecting any bid request and receipt of the European Customer Data.
Customer understands and acknowledges that Electica is relying on Customer fulfilling its obligations under Data Protection Laws in order for Electica to fulfill its obligations under this Agreement. Customer shall notify Electica if Customer determines, or suspects, an issue or violation with its obligations outlined in this section.
CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER SHALL FULLY INDEMNIFY, DEFEND AND HOLD HARMLESS ELECTICA AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL FEES, ARISING OUT OF OR ASSOCIATED WITH CUSTOMER’S VIOLATION OF ANY OF CUSTOMER’S RESPONSIBILITIES AND OBLIGATIONS OUTLINED IN THIS SECTION.

5.3 Processing and Sub-processing. In respect of Customer Data, Electica and Customer acknowledges that Customer is a data controller and Electica is a data processor. Electica shall process Customer Data on behalf of Customer in accordance with the Electica Privacy Policy. Electica shall be entitled to use sub-processors to process Customer Data on behalf of Electica. Electica will comply with Customer’s reasonably given and documented instructions regarding the processing of Customer Data. Where Electica receives an instruction from Customer that, in Electica’s reasonable opinion, violates applicable Data Protection Laws, Electica will inform Customer of their inability to comply with the instruction.

5.4 Data Subject Rights. Electica will use commercially reasonable efforts to fulfill Customer’s obligations to respond to requests from data subjects to exercise the data subject’s rights under Data Protection Laws in Customer Data concerning the data subject, to the extent that such assistance is legally permitted and technically possible in the circumstances.

5.5 Security Measures. Electica will implement and maintain appropriate technical, administrative and organizational measures to prevent unauthorized and unlawful processing of Customer Data appropriate to the nature and sensitivity of the Customer Data.

5.6 Aggregated Data. Customer grants Electica a non-exclusive, transferable, assignable, irrevocable, royalty-free, worldwide, perpetual license to create aggregated and anonymized Customer Data (“Aggregated Data”) and to use such Aggregated Data, and all modifications thereto and derivatives thereof, for Electica’s own business purposes. Electica shall own all Aggregated Data and may transfer or assign any of its rights in the Aggregated Data to any third party.

5.7 Residual Data. Customer understands that the Platform collects data relating to the Users’ use of the Platform, including, but not limited to, non‐personally identifiable information provided by users in response to an Ad (“Residual Data”). Residual Data, including all modifications thereto, shall be the sole and exclusive property of Electica, and Electica shall have the right to use Residual Data to improve the Platform; develop new products, Platforms and features; understand usage; improve, or enhance the Platform and Services for you or other customers; detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Platform; benchmarking or marketing purposes so long as such information or data is aggregated or and identifying details are removed; and generally for any purpose related to Electica’s business without further obligation to Customer. Electica may transfer or assign any of its rights in the Residual Data to any third party.

6. Confidentiality

6.1 Confidential Information. For purposes of this Agreement, “Confidential Information” means any information related to or contained within the Platform, non‐public information, know‐how and trade secrets, whether provided in written or oral form, that is designated as being confidential, or that a reasonable person knows or reasonably should understand to be confidential; provided, however, that the following shall not be considered Confidential Information: information that is, or becomes, publicly available without a breach of this Agreement, was lawfully known to the receiver of the information without an obligation to keep it confidential, is received from another source who can disclose it lawfully and without an obligation to keep it confidential, is independently developed, or is a comment or suggestion one party volunteers about the other’s business, products or Platforms. The parties agree to use the Confidential Information solely for the purpose of performing their obligations hereunder. Both parties will refrain from disclosing any Confidential Information to any third party, except to the extent that: (a) such disclosure is necessary to perform its obligations or exercise its rights under this Agreement; (b) such disclosure is required by applicable law, provided that the party required to make such disclosure must use reasonable efforts to give the other party advance notice thereof so as to afford that party an opportunity to seek an order or other relief for protecting its Confidential Information from any unauthorized use or disclosure and the Confidential Information is only disclosed to the extent required by law; (c) such disclosure is made with the consent of the disclosing party; (d) such disclosure is to employees, consultants or agents of the disclosing party who have a need to know such confidential information in order to assist the disclosing party in carrying out its obligations hereunder; or (e) such disclosure is (i) to legal counsel of the Parties; or (ii) in confidence, to accountants, banks, proposed investors, acquirers and financing sources and their advisors

7. Warranty Disclaimer

THE PLATFORM IS PROVIDED “AS IS” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND ELECTICA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND/OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES WILL ELECTICA BE LIABLE FOR THE RESULTS OF CUSTOMER’’S USE OR MISUSE OF THE PLATFORM, INCLUDING ANY USE CONTRARY TO LAW.

8. Indemnification

Customer agrees to indemnify, defend and hold harmless Electica and its officers, directors, affiliates, employees, and agents from and against any third party claims, liabilities, damages, losses and expenses, including, without limitation, reasonable legal fees, arising out of or in connection with: (a) Customers use of the Platform; (b) Customer’s violation of any terms or conditions of this Agreement; or (c) any claim that Customer’s Ads violate applicable laws or regulations, or any rights of another person or entity, including without limitation, any intellectual property rights.

9. Limitations on Liability

9.1 Exclusion of Damages. IN NO EVENT WILL ELECTICA BE LIABLE TO CUSTOMER, A CUSTOMER’S AFFILIATES, OR THEIR RESPECTIVE INDEMNITEES OR AUTHORIZED USERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE, (b) IMPAIRMENT, INABILITY TO USE, OR INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS, OR (c) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

9.2 Limitation on Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ELECTICA TO CUSTOMER, A CUSTOMER’S AFFILIATES, OR THEIR RESPECTIVE INDEMNITEES OR AUTHORIZED USERS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID TO ELECTICA IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. Term and Termination

10.1 Term. This Agreement shall commence on the Effective Date, and will remain in full force and effect until and unless terminated as set forth herein (“Term”).

10.2 Termination. Either party may terminate this Agreement: (a) immediately upon notice if the other party materially breaches any of its obligations hereunder and fails to cure such breach within fourteen (14) days following written notice; or (b) immediately upon notice in the event of the suspension of business, insolvency, institution of bankruptcy or liquidation proceedings by or against the other party. Customer or Electica may terminate this Agreement at any time by giving written notice of termination to the other party. Following any termination pursuant to this Section 10.2, both Parties shall endeavor in good faith to honor any existing campaigns, open orders, outstanding invoices known to exist on the date of notice of termination and Customer shall promptly pay any outstanding Fees.

10.3 Suspension from the Platform. Notwithstanding the foregoing, Electica may suspend or terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if Customer: (a) fails to pay in full any sums owing by it under this Agreement by the due date thereof and such failure continues for a period of five (5) business days after delivery of a written notice by Electica requiring Customer to correct such failure; (b) infringes the intellectual property rights of Electica; or (c) if Electica has reason to believe that Customer is using the Platform or Website in any for any improper or unlawful purpose.

10.4 Effect of Termination. Upon termination of the Agreement: (a) all rights of Customer under the Agreement will terminate; and (b) Electica’s obligations relating to the Platform will terminate.

11. Miscellaneous

11.1 Notice. All notices and other information to be given by one of the parties to the other shall be given by hand delivery, courier service, or e‐mail to the other party at the email address or address set forth below on the signature page. Notices sent by e‐mail shall be deemed to have been received by the party to whom it was addressed on the date of transmission and receipt, or if sent on a day that is not a business day or after normal business hours, on the first business day following transmission and receipt. Notices sent by hand delivery or courier service shall be deemed to have been received on the date of delivery. Any notice of change of address by a party shall be effective only upon receipt of a notice provided to the other party in accordance with the provisions of this Section 11.1.

11.2 Marketing and Publicity. Customer hereby grants Electica a non-exclusive, non-transferrable, non-sublicensable, worldwide, and royalty-free license to use and reproduce Customer’s name on Electica’s marketing materials, advertising, and Website, which may include: (i) naming Customer as a client of Electica; and (ii) a brief scope of services provided under this Agreement.

11.3 Entire Agreement. This Agreement, together with any other documents to be delivered pursuant hereto, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements,

11.4 Further Assurances. Each party shall take such action (including, but not limited to, the execution, acknowledgement and delivery of documents) as may reasonably be requested by the other party for the implementation or continuing performance of this Agreement.

11.5 Relationship. The parties are independent contractors and no other relationship is intended. Nothing herein shall be deemed to constitute either party as an agent, representative or employee of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall act in a manner that expresses or implies a relationship other than that of independent contractor. Each party shall act solely as an independent contractor and shall not be responsible for the acts or omissions of the other party. Neither party will have the authority or right to represent nor obligate the other party in any way except as expressly authorized by this Agreement.

11.6 Governing Law and Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the Republic of Ireland without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Republic of Ireland. You and Electica irrevocably agree to submit to the personal and exclusive jurisdiction to the courts located in County Dublin of the Republic of Ireland in regards to any action, suit, or proceeding arising out of or related to this Agreement. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE TERMS OR THE TRANSACTIONS CONTEMPLATED THEREIN.

11.7 Waiver. The waiver by either party of a breach or default of any provision of this Agreement by the other party shall not be effective unless in writing and shall not be construed as a waiver of any succeeding breach of the same or of any other provision. Nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege by such party shall constitute a waiver.

11.8 Assignment and Delegation. Neither party shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, we may assign our rights or delegate our obligations, in whole or in part and without such consent, to an entity that acquires all or substantially all of the business or assets of Electica, whether by merger, reorganization, acquisition, sale, or otherwise. Any assignment or delegation in violation of this Section shall be invalid.

11.9 Force Majeure. In no event shall we be liable to you, or be deemed to have breached this Agreement, for any failure or delay in performing our obligations under this Agreement, if and to the extent such failure or delay is caused by any of the following events: flood, fire, earthquake, explosion, pandemic, war, terrorism, cyber terrorism or other comparable criminal or willful acts (including third party hackers or other third party malicious acts), invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns, our suppliers failure to supply necessary goods or services to us, disruptions in the global or national supply chain, passage of applicable law, any action taken by a government authority or other public authority (such as imposing an embargo), or international, national, or regional shortage of adequate power, telecommunications capacity, or transportation. In allocating the risk of delay or failure of performance of a party’s respective obligations under this Agreement, the parties have not taken into account the possible occurrence of any of the events listed herein or any similar or dissimilar events beyond their control, irrespective of whether such listed, similar or dissimilar events were foreseeable as of the date of this Agreement.

11.10 Export Controls. Customer will not copy, download, or otherwise export or re-export any of the underlying information or technology of the Platform in violation of the laws and regulations of the Republic of Ireland or other applicable jurisdictions.

11.11 Marketing and Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided; however, we may include your name and logo in our promotional and marketing materials where we list our current or former customers.

11.12 Remedies. Customer acknowledges that its breach of any confidentiality or proprietary rights provision of the Agreement may cause Electica irreparable damage, which monetary damages would be inadequate to remedy. Consequently, Electica may seek injunctive or other equitable relief to enforce this Agreement and prevent any and all acts in violation of those provisions. The exercise by either party of any remedy under the Agreement will be without prejudice to its other remedies under the Agreement or otherwise.

11.13 Survival. Sections 4, 6, 8, 9 and 11 shall survive the expiration or termination of this Agreement.

11.14 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument. To evidence its execution of an original counterpart of this Agreement, a party may send a copy of its original signature on the execution page hereof to the other party by facsimile transmission or email and such transmission shall constitute delivery of an executed copy of this Agreement to the receiving party as of the date of receipt thereof by the receiving party or such other date as may be specified by the sending party as part of such transmission.

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