Brand Terms of Service
Updated as of March 1, 2023
We updated our Terms of Service on March 1, 2023 which apply to all new agreements and customers from that date forward. To view our previous Terms of Service, Click here.
These Terms of Services (“Terms of Service”) and Order (defined below) (the “Terms of Service” and, together with the “Order”, collectively are referred to as the “Agreement”), are effective as of the project start date listed on the Order (the “Effective Date”), by and between Highlight Insights, Inc., a Delaware corporation, with offices located at 224 W. 35th St. Ste 500, New York, NY. 10001 (“Highlight”) and the Customer listed on the Order (the “Customer”). These Terms of Service are incorporated by reference in all statement of works (SOW or SOWs) and Orders between Highlight and the Customer.
WHEREAS, Customer desires to retain Highlight to provide certain market research and data collection services upon the terms and conditions hereinafter set forth, and Highlight is willing to perform such services.
In consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:
“Action” has the meaning set forth in Section 11.1.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Change Order” has the meaning set forth in Section 14.
“Confidential Information” means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, marketing, research, in home use testing, panels, panel participants, respondents, questionnaires, surveys, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
“Customer Materials” mean the materials to be provided by the Customer to Highlight under this Agreement for the performance of the Services, as described in more detail in the Order.
“Deliverables” means all documents, work product, and other materials that are delivered to Customer hereunder or prepared by or on behalf of Highlight in the course of performing the Services, including any items identified as such in the Order.
“Disclosing Party” means a party that discloses Confidential Information directly or indirectly under this Agreement.
“Highlight” has the meaning set forth in the preamble.
“Highlight Personnel” means all employees and subcontractors, if any, engaged by Highlight to perform the Services.
“Initial Term” has the meaning set forth in Section 6.1.
“Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Pre-Existing Materials” means all intellectual property (patents, copyrights, trademarks, and other intellectual property), documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, provided by or used by Highlight in connection with performing the Services, in each case developed or acquired by the Highlight prior to the commencement or independently developed before, during or after the term of this Agreement.
“Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.
“Renewal Term” has the meaning set forth in Section 6.2.
“Services” mean the professional services to be provided by Highlight under this Agreement, as described in more detail in the Order, and Highlight’s obligations under these Terms of Service.
“Term” has the meaning set forth in Section 6.
2.1 Highlight shall provide the Services to Customer as described in more detail in the Order in accordance with the terms and conditions of these Terms of Service.
2.2 The order (“Order”) shall include the following information, if applicable:
(a) a detailed description of the Services to be performed pursuant to the Order;
(b) the date upon which the Services will commence and the term of such Order;
(c) the fees to be paid to Highlight under the Order;
(d) any criteria for completion of the Services; and
(e) any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Order.
3. Highlight’s Obligations.
3.1 Highlight is responsible for all Highlight Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.
3.2 Highlight shall use reasonable efforts to meet any performance dates specified in the Order, and any such dates shall be estimates only.
3.3 The obligations of Highlight under this Agreement shall be performed fully within the United States, unless approved in writing in advance by Customer.
4. Customer’s Obligations.
4.1 Customer shall:
(a) cooperate with Highlight in all matters relating to the Services and appoint in its reasonable discretion, a Customer employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Customer with respect to matters pertaining to this Agreement (the “Customer Contract Manager”);
(b) provide access to Customer’s premises and such office accommodation and other facilities as may reasonably be required by Highlight, for the purposes of performing the Services;
(c) respond promptly to any Highlight request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Highlight to perform Services in accordance with the requirements of this Agreement;
(d) provide such Customer Materials, as Highlight may request, in order to carry out the Services in a timely manner and ensure that it is complete and accurate in all material respects; and
(e) obtain and maintain all necessary licenses and consents and comply with all applicable Law in relation to the Services and the use of Customer Materials in all cases before the date on which the Services are to start.
4.2 If Highlight’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Highlight shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. Change Orders.
5.1 If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing in accordance with the notice provisions in Section 16.3. Highlight shall, within a reasonable time (not to exceed ten (10) business days) after receiving a Customer-initiated request, or at the same time that Highlight initiates such a request, provide a written estimate to Customer of:
(a) the estimated time required to implement the change;
(b) any necessary variations to the fees and other charges for the Services arising from the change;
(c) the estimated effect of the change on the Services;
(d) any other estimated impact the change might have on the performance of this Agreement; and
(e) any other information reasonably requested by the Customer.
5.2 Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in a signed writing.
5.3 If Customer requests a change and then, after receiving Highlight’s written estimate, decides not to follow through with the change, Highlight may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with Section 7.
5.4 Notwithstanding Section 5.1 and Section 5.2, Highlight may, from time to time change the Services: (i) upon written notice to Customer in order to comply with any applicable safety or statutory requirements, or (ii) subject to Customer’s prior written consent, which shall not be unreasonably withheld or delayed, in each case provided that such changes do not materially affect the nature, scope of, or fees or other charges for the Services.
6. Term and Termination.
6.1 Term. This Agreement shall commence as of the Effective Date and shall continue thereafter for a period as described in the Order (the “Initial Term”) for subscriptions, and until the defined project has been completed including all services rendered and final Deliverables provided as detailed in the Order for non-subscription projects, unless sooner terminated pursuant to this Section 6.
6.2 Renewal. For subscription purchases, upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive twelve (12) month terms unless either party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). If the Term is renewed for one or more Renewal Term, the terms and conditions of this Agreement during each Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal. If either party provides timely notice of nonrenewal, then this Agreement shall terminate on the expiration of the then-current Term, unless sooner terminated as provided in this Section 6. All renewals, whether automatic or negotiated, are subject to a minimum base price increase of 5%.
6.3 Termination for Convenience. Highlight, in its sole discretion, may terminate this Agreement, in whole or in part, at any time without cause, by providing at least sixty (60) days’ prior written notice to the other party.
6.4 Termination for Cause. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:
(a) Breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
(b) (i) Becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within ten business days or is not dismissed or vacated within ten days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
6.5 Effects of Termination or Expiration. Upon expiration or termination of this Agreement for any reason:
(a) Except for termination due to breaches by the Customer, Highlight shall (i) deliver to Customer all Deliverables (whether complete or incomplete) for which Customer has paid and all Customer Materials in its possession, (ii) provide reasonable cooperation and assistance to Customer upon Customer’s written request and at Customer’s sole expense in transitioning the Services to a different Person, and (iii) on a pro rata basis, refund all fees and expenses paid in advance for any Services not performed or Deliverables not provided.
(b) Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party’s Confidential Information, (ii) permanently delete all of the other party’s Confidential Information from its computer systems, and (iii) certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that Customer may retain copies of any Confidential Information of Highlight incorporated in the Deliverables or to the extent necessary to allow it to make full use of the Services and any Deliverables.
(c) In no event shall Customer be liable for any Highlight Personnel termination costs arising from the expiration or termination (not due to Customer breach of this Agreement) of this Agreement.
6.6 Survival. The rights and obligations of the parties set forth in the following sections, including all subsections thereof, Section 6.6 and Section 1 (Definitions), Section 4 (Customer Obligations), Section 6 (Term and Termination), Section 7 (Fees and Expenses; Payment Terms), Section 8 (Intellectual Property), Section 9 (Confidential Information), Section 10 (Representations, Warranties and Covenants), Section 11 (Indemnification), Section 12 (Limitation of Liability), Section 14 (Force Majeure), and Section 15 (Publicity), Section 16 (Miscellaneous), and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
7. Fees, Expenses, and Payment Terms.
7.1 In consideration of the provision of the Services by Highlight and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order.
7.2 Where Services are provided for a fixed price, the total fees for the Services shall be the amount set out in the Order. Highlight shall issue invoices to Customer for the fees that are then payable upon execution of the Order unless otherwise specified in the Order.
7.3 Where the Services are provided on a time and materials basis:
(a) the fees payable for the Services shall be calculated in accordance with Highlight’s fee rates set forth in the Order; and
(b) Unless otherwise specified in an Order, Highlight shall issue invoices to Customer monthly in arrears for its fees for time for the immediately preceding month, calculated as provided in this Section 7.3, together with a detailed breakdown of any expenses for such month incurred in accordance with Section 7.4.
7.4 Customer agrees to reimburse Highlight for all actual, documented, and reasonable travel and out-of-pocket expenses incurred by Highlight in connection with the performance of the Services. Additionally, Customer agrees to be responsible for any additional expenses that were necessary for project completion and could not have reasonably been foreseen or predicted at the time of execution of the Order. Should such expenses occur, Highlight shall issue invoices to Customer at the conclusion of the relevant project with a detailed breakdown of such expenses.
7.5 Customer agrees to reimburse Highlight for all product procurement, storage, product returns, rework, or other expenses made by Highlight on behalf of or at the request of Customer. Cost for procurement of products may include but is not limited to purchase, sales tax, Taxes, custom charges, shipping, and tips for delivery personnel. Highlight shall issue invoices to customer for all reimbursable costs immediately upon incurring, regardless of type of service purchased, and customer shall pay invoice within thirty (30) days after Customer’s receipt of such invoice.
7.6 Highlight shall issue invoices to Customer only in accordance with the terms of this Section, and Customer shall pay all properly invoiced amounts due to Highlight thirty (30) days after Customer’s receipt of such invoice. All payments hereunder shall be in US dollars and made by check or wire transfer. In the event payments are not received by Highlight within thirty business days after becoming due, Highlight may (a) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under Law, from the date such payment was due until the date paid, and (b) suspend performance for all Services until payment has been made in full.
7.7 Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder (collectively referred to as “Taxes”). Any such taxes, duties, and charges currently assessed or which may be assessed in the future, that are applicable to the Services are for the Customer’s account, and Customer hereby agrees to pay such taxes; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Highlight’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
7.8 Customer agrees to reimburse Highlight for any expenses incurred resulting from a delay for any period of time of a project initiated by the Customer which may include but is not limited to recruiting costs, shipping costs, or other logistics costs. Should a Customer elect to cancel the project in its entirety or delay the project for a period greater than ninety (90) days from the mutually agreed upon initiation of the project, Customer agrees to be responsible for a cancellation fee equivalent to the lessor of a) 10% of the cost as agreed upon in the Order and b) $5,000 USD, in addition to any expenses incurred, with the amount to be invoiced upon notification of cancellation or extended delay.
7.9 All credits shall expire in full, the earlier of: twelve (12) months after the date of receipt by the customer or the end of a subscription term.
8. Intellectual Property Rights and Ownership.
8.1 Except as set forth in Section 8.3 and upon full payment of the fees and expenses payable under this Agreement, Customer shall be the sole and exclusive owner of all right, title, and interest in and to the Deliverables, including all Intellectual Property Rights therein. Highlight agrees, and will cause its Highlight Personnel to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Customer. To the extent that any of the Deliverables do not constitute a “work made for hire”, Highlight hereby irrevocably assigns, and shall cause the Highlight Personnel to irrevocably assign to Customer, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Highlight shall cause the Highlight Personnel to irrevocably waive, to the extent permitted by applicable Law, any and all claims such Highlight Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.
8.2 Upon the reasonable request of Customer, Highlight shall, and shall cause the Highlight Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Customer to prosecute, register, perfect, or record its rights in or to any Deliverables.
8.3 Highlight and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein. Highlight hereby grants Customer a limited, irrevocable, perpetual, royalty-free, non-transferable (except in accordance with Section 16.6), non-sublicenseable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Customer’s receipt or use of the Services and Deliverables. Notwithstanding anything to the contrary, the aforementioned license to any Pre-Existing Materials does not apply to any stand-alone Pre-Existing Materials. All other rights in and to the Pre-Existing Materials are expressly reserved by Highlight. Customer recognizes that any access provided by Highlight to any software shall be provided remotely on a ‘software as a service’ basis and that nothing herein shall entitle Customer to receive a copy of such software in source or object code form, or otherwise entitle Customer to a transfer of such software.
8.4 Customer and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein. Highlight shall not use any Customer Materials except solely during the Term of the Agreement to the extent necessary to provide the Services to Customer. Notwithstanding anything to the contrary, Customer grants Highlight a perpetual, irrevocable, world-wide, non-exclusive, royalty-free, assignable, license to collect, analyze, and use for statistical or benchmarking purposes, Customer aggregated, anonymous data, including Confidential Information and Customer Materials, that does not identify any personally identifiable information.
9. Confidential Information.
9.1 The Receiving Party agrees:
(a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its Affiliates, and their officers, employees, consultants, and legal advisors who have a “need to know”, who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 9;
(b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Customer, to make use of the Services and Deliverables; and
(c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
9.2 If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide:
(a) provide prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
(b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If, after providing such notice and assistance as required herein, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
10. Representations, Warranties, and Covenants.
10.1 Each party represents, warrants and covenants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
(b) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder;
(c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and
(d) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
10.2 Highlight represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
10.4 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS Section 10, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) HIGHLIGHT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
11.1 HIGHLIGHT SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS CUSTOMER AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, AND PERMITTED ASSIGNS (EACH, A “CUSTOMER INDEMNITEE”) FROM AND AGAINST ALL LOSSES AWARDED AGAINST A CUSTOMER INDEMNITEE IN A FINAL JUDGMENT (AN “ACTION”) ARISING OUT OF OR RESULTING FROM BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE, PERSONAL PROPERTY RESULTING FROM THE WILLFUL, FRAUDULENT, OR GROSSLY NEGLIGENT ACTS OR OMISSIONS OF HIGHLIGHT OR HIGHLIGHT PERSONNEL.
11.2 HIGHLIGHT SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE CUSTOMER INDEMNITEES FROM AND AGAINST ALL LOSSES AWARDED AGAINST A CUSTOMER INDEMNITEE IN A FINAL JUDGMENT BASED ON A CLAIM THAT ANY OF THE SERVICES OR DELIVERABLES OR CUSTOMER’S RECEIPT OR USE THEREOF INFRINGES ANY INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY ARISING UNDER THE LAWS OF THE UNITED STATES; PROVIDED, HOWEVER, THAT HIGHLIGHT SHALL HAVE NO OBLIGATIONS UNDER THIS SECTION 11.2 AND CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS HIGHLIGHT WITH RESPECT TO CLAIMS TO THE EXTENT ARISING OUT OF, RELATING TO OR RESULTING FROM:
(a) ANY CUSTOMER MATERIALS OR ANY INSTRUCTION, INFORMATION, DESIGNS, SPECIFICATIONS, PRODUCTS, OR OTHER MATERIALS PROVIDED BY CUSTOMER TO HIGHLIGHT;
(b) USE OF THE DELIVERABLES IN COMBINATION WITH ANY MATERIALS OR EQUIPMENT NOT SUPPLIED TO CUSTOMER OR SPECIFIED BY HIGHLIGHT IN WRITING, IF THE INFRINGEMENT WOULD HAVE BEEN AVOIDED BY THE USE OF THE DELIVERABLES NOT SO COMBINED; OR
(c) ANY MODIFICATIONS OR CHANGES MADE TO THE DELIVERABLES BY OR ON BEHALF OF ANY PERSON OTHER THAN HIGHLIGHT OR HIGHLIGHT PERSONNEL.
11.3 CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS HIGHLIGHT AND ITS AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, AND PERMITTED ASSIGNS (“HIGHLIGHT INDEMNITEES”) FROM AND AGAINST ALL LOSSES ARISING OUT OF, RELATING TO OR RESULTING FROM ANY THIRD-PARTY ACTION ARISING OUT OF, RELATING TO OR RESULTING FROM:
(a) BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE, PERSONAL PROPERTY RESULTING FROM THE NEGLIGENT, GROSS NEGLIGENT, OR WILLFUL ACTS OR OMISSIONS OF CUSTOMER; AND
(b) CUSTOMER’S BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT, OR OBLIGATION OF CUSTOMER IN THIS AGREEMENT;
(c) CUSTOMER’S BREACH OF THIS AGREEMENT;
(d) BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE, PERSONAL PROPERTY TO ANY END-USER, ANY BYSTANDERS, OR ANYONE ELSE, ARISING FROM OR RELATED TO THE PRODUCTS SENT TO THEM;
11.4 CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE HIGHLIGHT INDEMNITEES FROM AND AGAINST ALL LOSSES BASED ON A CLAIM THAT ANY OF THE CUSTOMER MATERIALS OR HIGHLIGHT’S RECEIPT OR USE THEREOF INFRINGES ANY INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY ARISING UNDER THE LAWS OF THE UNITED STATES.
11.5 THE PARTY SEEKING INDEMNIFICATION HEREUNDER SHALL PROMPTLY NOTIFY THE INDEMNIFYING PARTY IN WRITING OF ANY ACTION AND REASONABLY COOPERATE WITH THE INDEMNIFYING PARTY AT THE INDEMNIFYING PARTY’S SOLE COST AND EXPENSE. THE INDEMNIFYING PARTY SHALL IMMEDIATELY TAKE CONTROL OF THE DEFENSE AND INVESTIGATION OF SUCH ACTION AND SHALL EMPLOY COUNSEL OF ITS CHOICE TO HANDLE AND DEFEND THE SAME, AT THE INDEMNIFYING PARTY’S SOLE COST AND EXPENSE. THE INDEMNIFYING PARTY SHALL NOT SETTLE ANY ACTION THAT CAUSES THE INDEMNIFIED PARTY TO PAY ANY MONEY OR ANYTHING OF VALUE OR IN A MANNER THAT ADVERSELY AFFECTS THE RIGHTS OF THE INDEMNIFIED PARTY WITHOUT THE INDEMNIFIED PARTY’S PRIOR WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED. THE INDEMNIFIED PARTY’S FAILURE TO PERFORM ANY OBLIGATIONS UNDER THIS SECTION 11.5 SHALL NOT RELIEVE THE INDEMNIFYING PARTY OF ITS OBLIGATIONS UNDER THIS SECTION 11.5 EXCEPT TO THE EXTENT THAT THE INDEMNIFYING PARTY CAN DEMONSTRATE THAT IT HAS BEEN MATERIALLY PREJUDICED AS A RESULT OF SUCH FAILURE. THE INDEMNIFIED PARTY MAY PARTICIPATE IN AND OBSERVE THE PROCEEDINGS AT ITS OWN COST AND EXPENSE.
11.6 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE INDEMNIFYING PARTY IS NOT OBLIGATED TO INDEMNIFY, HOLD HARMLESS, OR DEFEND THE INDEMNIFIED PARTY AGAINST ANY CLAIM (WHETHER DIRECT OR INDIRECT) TO THE EXTENT SUCH CLAIM OR CORRESPONDING LOSSES ARISE OUT OF OR RESULT FROM THE INDEMNIFIED PARTY’S:
(a) NEGLIGENCE OR MORE CULPABLE ACT OR OMISSION (INCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT); OR
(b) BAD FAITH FAILURE TO COMPLY WITH ANY OF ITS OBLIGATIONS SET FORTH IN THIS AGREEMENT.
12. Limitation of Liability.
12.1 IN NO EVENT WILL HIGHLIGHT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 IN NO EVENT WILL HIGHLIGHT’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF (I) TEN THOUSAND DOLLARS ($10,000) OR (II) AGGREGATE AMOUNTS PAID OR PAYABLE TO HIGHLIGHT IN THE SIX (6) MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Non-Compete. Highlight retains the right to perform the same or similar type of services for third parties during the Term of this Agreement and after its expiration or termination.
14. Force Majeure.
14.1 No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) shortage of adequate power or transportation facilities; (j) epidemics or pandemics; or (k) other events beyond the reasonable control of the party affected by the Force Majeure Event. The affected party shall give notice to the other party, stating the period of time the occurrence is expected to continue.
14.2 During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance
14.3 The affected party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume performance of its obligations as soon as reasonably practicable after the event has ceased. If the affected party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 14, the other party may thereafter terminate this Agreement upon five (5) days’ written notice.
Highlight may use Customer’s name to and logo to identify Customer as a customer of Highlight, including on Highlight’s website and marketing materials. Highlight agrees that any such use shall be subject to Highlight complying with any written guidelines that Customer may deliver to Highlight. Highlight may issue a press announcement regarding Customer’s engagement of Highlight, provided that the content of such press announcement shall be subject to the prior written approval of Customer, such approval not to be unreasonably withheld or delayed. If requested by Highlight, Customer agrees to participate in a written case study, provided that Highlight shall not publish such case study without the written approval of Customer, such approval not to be unreasonably withheld or delayed.
16.1 Each party shall, upon the reasonable request, and at the sole cost and expense, of the other party, promptly execute such reasonable documents and perform such reasonable acts as may be necessary to give full effect to the terms of this Agreement.
16.2 The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16.3 All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee or its representative, if sent by a nationally recognized overnight courier (tracking receipt requested); (c) on the date sent by email if sent during normal business hours/days of the recipient, and on the next business day if sent after normal business hours/days of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 16.3).
If to Highlight:
Highlight Insights, Inc.
225 Lafayette St. 7B
New York, NY. 10012
If to Customer:
to the Customer address specified on the Order.
16.4 For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Schedules, Exhibits, and Orders refer to the Sections of, and Schedules, Exhibits, and Orders attached to this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits, and Orders referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
16.5 This Agreement, together with all Schedules, Exhibits, and Orders and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule, Exhibit or Order, the following order of precedence shall govern: (a) first, the Order, (b) second, these Terms of Service, exclusive of its Exhibits and Schedules; and (c) third, any Exhibits and Schedules to these Terms of Service.
16.6 Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, that, Highlight upon written notice to the Customer, Highlight may assign the Agreement to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation, or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
16.7 This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
16.8 The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
16.9 This Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16.10 If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.11 This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware. The Customer and Highlight irrevocably consent to the exclusive jurisdiction of the state and federal courts of New York County, New York in any action arising from or related to this Agreement.
16.12 Each party acknowledges that a breach by a party of Section 8 (Intellectual Property Rights; Ownership), Section 9 (Confidential Information), or the non-compete portions of Section 13 (Non-Exclusivity; Non-Compete) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
16.13 If any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
16.14 This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.