Dstillery Studio Terms of Service

These Studio Terms of Service (the “Agreement“) are entered into by Dstillery, Inc., a Delaware corporation having a principal place of business at 470 Park Avenue South, 17^th Fl. S., New York, NY 10016 (“Dstillery“) and the entity or person agreeing to these terms (“Company“) and govern Company’s access to and use of the Services.  Company and Dstillery are herein referred to individually as a “Part” and collectively as the “Parties“. 

This Agreement is effective as of the date Company clicks to accept it (“Effective Date“). If you are accepting on behalf of Company, you represent and warrant that (i) you have full legal authority to bind Company to this Agreement, and (ii) you agree, on behalf of Company, that Company will be bound by this Agreement.

Certain Definitions.  As used herein, the following definitions shall apply:

“Applicable Privacy Laws“ means any U.S. state or federal privacy or security law and/or self-regulatory code that are in effect during the Term, and which apply to Personal Information (as defined below) processed pursuant to the Agreement, including but not limited to the Virginia Consumer Data Protection Act, the California Privacy Rights Act, the Colorado Privacy Act, the Connecticut Data Protection Act, the Utah Consumer Privacy Act, each as amended, replaced or supplemented from time to time, and all subordinate legislation made under them, together with any codes of practice, regulations or other guidance issued by the governments, agencies, data protection regulators, or other authorities in the relevant countries, states or other jurisdictions, and (to the extent applicable to the parties) the NAI and DAA self-regulatory codes. 

“Campaign” means a Company digital marketing campaign that utilizes Modeled Audiences.

“Company First Party Audiences” means, in connection with the Audience Modeling Services, a specified audience group consisting of device IDs and/or cookie IDs owned by the Company.

“Data Processing Agreement” means the data processing agreement available here: dstillery.com/data-processing-agreement.

“Dstillery Data” means data tagging a device or other ID source as a member of a segment, audiences, Dstillery insights, audience insights, as well as any data derived therefrom, and any other data provided by Dstillery and used in connection with any of the Services provided by Dstillery hereunder. 

“Modeled Audiences” means, in connection with the Audience Modeling Services, a specified audience group consisting of device IDs and/or cookie IDs, modeled by Dstillery from (i) Company First Party Audiences and/or (ii) Dstillery Data. 

“Personal Information” or “Personal Data” shall mean: (i) any information relating to an identified or identifiable natural person or household; and (ii) any information defined as “personally identifiable information,” “personal information,” “personal data” or similar terms as such terms are defined under Applicable Privacy Laws.

“Platform Services” or “Services” means, collectively, (i) Dstillery’s provision to Company of access to the Platform as set forth herein, in order to receive one or more of the following services: (a) audience insights (“Audience Insights“); (b) audience creation and modeling (referred to herein as “Audience Modeling Services“); and (c) audience syndication to third party platforms. 

“Proprietary Audiences” means audiences created solely using Dstillery Data.  

“Studio Platform” or “Platform” means Dstillery’s proprietary self-service audience management platform used to explore, create and activate audiences on a Third Party Platform selected by Company, and includes, without limitation, the Dstillery user interface, and any improvements, modifications, updates or upgrades which are made generally available at no additional charge by Dstillery to its customers. 

“Third Party Platform Agreement” shall mean the services agreement between Third Party Platform Entity and Dstillery or between Third Party Platform Entity and Company, pursuant to which the Company may execute a Campaign(s). 

“Third Party Platform Entities” means the third-party entity, pursuant to a separate, executed Third Party Platform Agreement between such third party and Company or between such third party and Dstillery, which will send audience data as described herein, subject to the terms and restrictions set forth herein. 

“Visitor” means visitors to, or users of, any of the Company’s websites or similar media.

1. Access to Dstillery Platform; Reservation of Rights. Subject to the terms and conditions of this Agreement, Dstillery shall provide Company access to the Studio Platform during the Term (as defined below). The Platform may be accessed and used only by individual employees and contractors authorized by Company using a user identifier and password provided to Company by Dstillery. Dstillery reserves all right, title and interest in and to the Dstillery Platform other than the limited access rights expressly granted to Company hereunder.
2. Provision of the Services.
   1. “Services” Subject to the terms and conditions of this Agreement, Dstillery shall maintain and provide Company with software-as-a-service access to and use of the Platform Services. In connection therewith, and without limiting the generality of the foregoing, Dstillery shall provide the appropriate user interface, data processing, and ability to download or export results data.
   2. “Restrictions” The Platform and Services will be accessed and used only by individual employees and contractors authorized by Company using a user identifier and password provided to Company by Dstillery. Company shall not, (and will not authorize or allow any third party to), directly or indirectly, (i) resell, sell, license, sublicense, lease, share, transfer, assign or rent any of the Dstillery Data (as defined) or any aspect of the Dstillery Services (as defined) or Platform, (ii) reproduce, modify, create other works from, distribute, decompile, disassemble, reverse engineer, or otherwise attempt to determine the functionality of any portion of the Dstillery Services, the Platform, any software programs, platform or application programming interface(s) made available or accessed hereunder, or any Dstillery Data or other data or deliverables provided by Dstillery hereunder; (iii) use the Dstillery Services, Platform, Dstillery Data or any other data provided by Dstillery hereunder, or any deliverables received hereunder, in violation of applicable law or regulation (including Applicable Privacy Laws and regulations), this Agreement, for malicious, defamatory, discriminatory, obscene or unethical purposes, in a manner that promotes illegal behavior, or for any purpose other than as permitted hereunder, (iv) use the Audience Modeling Services to build audiences utilizing content (from third party sites or otherwise) that includes (aa) racial, ethnic, political, or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other information that constitutes “sensitive” or “special category” under Applicable Privacy Laws (as defined below); (bb) protected health information regulated by the Health Insurance Portability and Accountability Act or medical information governed by state healthcare privacy laws; (v) use the Dstillery Data to validate, benchmark or otherwise evaluate data from any third party source, or (vi) use the Platform or any of the Services hereunder in a manner that exceeds reasonable request volume, or constitutes excessive or abusive usage, as mutually determined by the parties. Company shall not (and will not authorize or allow any third party to), directly or indirectly resell, sell, license, sublicense, lease, share, transfer, assign or rent any of the Proprietary Audiences or any Dstillery Data that resides in the Platform. Company agrees to defend, indemnify and hold harmless Dstillery and its officers, directors, employees and agents from and against any losses, damages, liability, costs and expenses incurred by such parties in connection with any third party claim arising from Company’s breach (or breach by any third party platform utilized by Company) of this Section.
   3. “Reservation of Rights.” Dstillery reserves all right, title and interest in and to the Services, other than the limited access rights expressly granted to Company hereunder.
   4. Audience Modeling Services. In connection with the Audience Modeling Services, subject to the terms and conditions and restrictions of this Agreement, Dstillery shall provide Company access to the Audience Modeling Services during the Term for the purposes of selecting, creating, combining, modeling and analyzing audiences and sending to selected Third Party Platform Entities certain specified audiences, for use by Company solely for purposes of online advertising and targeting (such services referred to herein, collectively, as “Audience Modeling Services”). Through access to and use of the Audience Modeling Services section of the Platform, and subject to the terms and restrictions set forth herein, Company shall identify the Company First Party Audiences, Modeled Audiences and such other audience selections or creations that it elects to send to the relevant Third Party Platform Entity(ies).
   5. Company Employees, Agents and Subcontractors. Company agrees that it is responsible for any acts or omissions of any of its employees, agents or subcontractors, and that it will ensure such agents and subcontractors comply with the terms of this Agreement.
3. Payment Terms. In exchange for the Services provided hereunder, Dstillery will receive fees through Company’s campaigns using Modeled Audiences on Third Party Platforms, in accordance with the applicable Third Party Platform Agreement.
4. Trademark License. Subject to the terms and conditions of this Agreement, each Party grants the other Party a non-exclusive and non-transferable license to use such Party’s name and/or logos (“Trademarks”) for use on such other Party’s web sites, promotional materials, and marketing collateral solely in conjunction with such other Party’s performance hereunder. All goodwill generated from such use shall inure to the sole benefit of the trademark owner. If a Party objects to any use of its Trademarks by the other Party, such other Party shall promptly remedy such usage to the reasonable satisfaction of the trademark owner after receiving written notice thereof.
5. Company Data. As between Company and Dstillery, Company shall retain ownership of all data of Company provided by Company to Dstillery during the course of this Agreement (“Company Data”). Company hereby grants Dstillery a non-exclusive, royalty-free license and right to use those portions of the Company Data provided by Company (a) solely as necessary to perform Dstillery’s obligations to Company under and in accordance with this Agreement, (b) to compile aggregated statistics and analysis including the Company Data for internal or marketing use (provided that no such use shall include any information that can identify Company) and (c) to disclose if required by law or valid order of a court or other governmental authority.
6. Dstillery Data.
   1. Right to Use Dstillery Data. Subject to the terms of this Agreement, Dstillery hereby grants Company a limited, non-exclusive, non-transferable, non-licensable right to use Dstillery Data during the Term solely in accordance with the restrictions, terms and conditions set forth herein.
   2. Reservations of Rights. Dstillery and its suppliers reserve all rights, including intellectual property rights, in and to all Dstillery Data not granted expressly in this Agreement. Company must not, directly or indirectly: (i) reverse engineer, decompile, disassemble, reproduce, modify, translate, enhance, or create derivative works of any Dstillery Data, or (ii) copy, rent, sell, lease, or distribute any Dstillery Data other than as permitted expressly herein.
   3. Protection of Rights. Company will: (i) use reasonable efforts to protect Dstillery’s proprietary and intellectual property rights in and to Dstillery Data, including, without limitation, notifying Dstillery of any breach of this Agreement that involves Dstillery Data or Visitor privacy; (ii) not use the Dstillery Data in a way that harms or is intended to harm Dstillery or its data providers, affiliates, customers or vendors; and (iii) if requested by Dstillery, cooperate with Dstillery in any legal action to prevent or stop unauthorized use, reproduction, or distribution of Dstillery Data or any action that may subject Dstillery or Visitors to harm or liability. lf Company establishes a login name and password, it must maintain the security of those credentials. Company will update all registration information as required to keep it accurate, current, and complete. Each agent, representative, employee, or any person or entity acting on Company’s behalf with respect to the use of Dstillery Data will be subject to and will abide by this Agreement.
   4. Data leakage. Company shall prevent unauthorized release of Dstillery Data (leakage). Except as specifically permitted hereunder, in no event may Company sell Dstillery Data or otherwise make available to a third party the ability to mark a Visitor with respect to Dstillery Data categorizations.
7. Third-Party Data; Site Data; Performance Data. If third-party data is provided to Company or used to create or specify targeted segments for Company’s purchasing, Company shall have no right, title, or interest in or to any such third-party data and may only use such data during the Term, subject to the restrictions herein, and in connection with the relevant transaction with Dstillery. Company agrees that Dstillery Data and Proprietary Audiences shall be Confidential Information of Dstillery under this Agreement. Company may only use such data during the Term to perform its obligations under the Agreement.
8. Confidentiality. For purposes of this, the term “Confidential Information” means non-public information that either Party designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential, including without limitation, the terms or existence of this Agreement, a Party’s finances, Company records and contact information, employee lists, Dstillery Data, Proprietary Audience Data, Company Data, and business, strategic development and marketing plans. Confidential Information will not include any information that: (a) is or subsequently becomes publicly available without a breach of any obligation of confidentiality owed to a Party under this Agreement; (b) was already known to a Party prior to the other Party’s disclosure of such information so long as such information already known to a Party can be substantiated by third-party data or documentation; (c) became known to a Party from a source other than the other Party and other than by a breach of an obligation of confidentiality owed to the Party by such source and confirmation is verifiable with third party; or (d) is independently developed by a Party so long as documentation is available to verify such independent development. Neither Party will disclose any of the other Party’s Confidential Information to any third party; provided, however, that a Party may disclose such Confidential Information to its employees, agents and/or independent contractors to whom disclosure is reasonably required provided that such individuals and entities have agreed to keep such information confidential in the same or a substantially similar manner as provided for in this Agreement. Neither Party will use any of the other Party’s Confidential Information except as expressly permitted by, or as required to achieve the purposes of, this Agreement. Each Party will take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature, to keep confidential the Confidential Information of the other Party. Notwithstanding anything contained in this section to the contrary, a Party may disclose the other Party’s Confidential Information in accordance with a judicial or other governmental order or as may be required by statute; provided, however, that a Party so disclosing Confidential Information (the “Disclosing Party”) will give the other Party (the “Protected Party”) as much advance notice as reasonably possible of any such disclosure so that the Protected Party may seek a protective order or other remedy. The Disclosing Party will comply with any protective order or equivalent relating to the Confidential Information. In the event such a protective order is not obtained, the Disclosing Party will use commercially reasonable efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law is disclosed. The Parties agree that monetary damages for breach of confidentiality under this section may not be adequate, and the non-breaching Party shall be further entitled to seek injunctive relief without having to post a bond or other form of security.
9. Privacy. To the extent applicable to each Party’s performance and obligations under this Agreement, Dstillery and Company shall adhere to any applicable privacy laws, regulations, codes, and self-regulatory guidelines. Each Party will post a privacy policy conspicuously on its respective web site that is in accordance with all applicable laws, regulations, codes, and self-regulatory guidelines, and will provide any applicable, required disclosures to users of the applicable applications (and obtain any necessary consents from such users) regarding the Services and data collected in connection therewith. Neither Party shall use the Dstillery Platform or any of the Services to collect, transmit, provide, or otherwise make available to the Dstillery Platform “sensitive information,” which is defined as the following: information defined as “sensitive” or “special category” about an individual or household under Applicable Privacy Laws (as defined below), including but not limited to: financial account numbers, insurance plan numbers, precise information about health or medical conditions, medical records or pharmaceutical prescriptions, government-issued identifiers (such as a Social Security number), race, ethnicity, religion, trade union membership, sexual orientation, genetic or biometric information and precise location information such as GPS coordinates. Any personally identifiable information about a minor under the age of 13 is also “sensitive information.” Company may not merge or otherwise associate personally identifiable information with information collected via Dstillery, unless such merger or association is conducted in accordance with the NAI and DAA self-regulatory codes without use of Dstillery Data or Services.
   During the Term of the Agreement, (i) if applicable, with respect to the processing of any personal information in connection with the Services, both Parties shall comply with the terms of the Data Processing Agreement; and (ii) both Parties represent that each will take reasonable steps not to transfer to the other any Personal Data of Data Subjects (as each are defined in EU Data Protection Laws) located in the EEA and/or governed by EU Data Protection Laws. To the extent a Party passes Personal Data governed under EU Data Protections Laws to the other Party, the recipient will, upon discovery of such Personal Data, immediately cease processing such Personal Data, purge such data from its systems and destroy such data no later than thirty (30) days from the collection. The parties further agree to immediately notify the other to the extent that it receives such Personal Data.
10. Company Obligations.
    1. Company is solely responsible for (1) creating, loading, and implementing the related data files via the Dstillery Platform in accordance with this Agreement; and (2) ensuring that content and materials loaded and/or implemented by Company do not cause damage or injury to Dstillery or the Dstillery Platform. Company agrees that it is responsible for any acts or omissions of any of its employees, agents or subcontractors, and that it will ensure such agents and subcontractors comply with the terms of this Agreement. Company hereby represents, warrants and covenants that, (i) the Company Data has been and will continue to be collected in accordance with applicable laws and regulations including privacy/data protection laws, and none of the information provided to Dstillery shall contain any information about any visitor (or any other particular person or end user) that Dstillery can identify as personally-identifiable information, (ii) it has received all necessary consents, rights and permissions to collect, use and provide the Company Data to Dstillery and any third parties in connection with the Services as contemplated hereunder, (iii) the Company Data provided by it hereunder shall not infringe the patent, copyright, trade secret, trademark rights or other property rights of any third party, (iv) it shall use the Dstillery Platform and Services solely for its legitimate business purposes as contemplated by this Agreement, and shall not interfere with the integrity or performance of the Dstillery Platform or the data contained therein or attempt to gain unauthorized access to the Dstillery Platform, and (v) it shall use the Dstillery Platform and Services in accordance with applicable laws.
    2. In the event that Dstillery provides segment pixels (“Dstillery Pixels”) for installation on Company’s website, application, or advertisement to facilitate the collection of data, then in connection with the Dstillery Pixels:
       1. Company acknowledges and agrees to install, maintain, use, and discontinue use of the Dstillery Pixels on Company’s websites, applications owned or controlled by Company (“Digital Media Properties”), and/or advertisements in accordance with this Agreement and any other written instructions that Dstillery may provide.
       2. Company agrees that Company will not manipulate, alter, change, “piggyback” on, gather data from or otherwise use the Dstillery Pixels in any way unless expressly authorized in writing by Dstillery.
       3. Company confirms that Digital Media Properties where Dstillery Pixels are or shall be installed are operated in accordance with a prominently displayed, robust privacy policy which complies with Applicable Privacy Laws and the terms of the Data Processing Agreement.
       4. Company acknowledges that Dstillery may modify, suspend, or terminate access to, or discontinue at any time the availability of, Dstillery Pixels.
       5. Company understands and agrees that Company will be fully responsible for (i) ensuring that visitors to the Digital Media Properties have provided all necessary consents, rights and permissions, and have received any other legally required notices and/or communications, to allow use of Dstillery Pixels and the provision of any Personal Data or Personal Information to Dstillery, and (ii) obtaining all other necessary rights and consents to allow installation and use of Dstillery Pixels and the provision of any Personal Data or Personal Information without violating any legal or contractual rights of any party.
11. Mutual Representations. Each Party represents and warrants to the other Party that (a) such Party has the required operational power and authority to enter into this Agreement, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
12. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE DSTILLERY PLATFORM AND SERVICES ARE DELIVERED “AS IS” AND “AS AVAILABLE,” AND DSTILLERY DOES NOT MAKE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DSTILLERY PLATFORM OR SERVICES, AND DSTILLERY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. DSTILLERY DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT COMPANY OR ANY THIRD PARTIES SHALL RECEIVE FROM THE DSTILLERY PLATFORM OR SERVICES.
13. Indemnification
    1. Dstillery Indemnification. Dstillery agrees to defend, indemnify and hold harmless Company and its officers, directors, employees, and agents, from and against any losses, damages, liability, costs and expenses incurred by such parties in connection with any third-party claim: alleging that the Dstillery Platform infringes a third-party U.S. patent, trademark or copyright. In the event of an alleged infringement, Dstillery may, at its sole discretion and expense, either (i) procure for Company the right to continue using the Dstillery Platform, (ii) substitute an equivalent non-infringing version of the Dstillery Platform, (iii) modify the Dstillery Platform so that it is non-infringing or (iv) if Dstillery reasonably determines that the foregoing options are not commercially practicable, terminate this Agreement.
    2. Company Indemnification. Company agrees to defend, indemnify and hold harmless Dstillery and its officers, directors, employees and agents from and against any losses, damages, liability, costs and expenses incurred by such parties in connection with any third-party claim: (i) alleging that the data or content provided by Company or input into the Dstillery Platform (x) infringes upon a third-party U.S. patent, trademark or copyright, or (y) is obscene, defamatory, illegal, unethical, or promotes illegal behavior, (ii) arising from any failure to obtain any necessary permit, license or consent in connection herewith, and/or (iii) arising from Company’s breach of Section 2(b) (Restrictions) or Section 10 (Company Obligations).
    3. Indemnification Procedures. The indemnified Party shall promptly notify the indemnifying Party in writing of the claim for which the indemnified Party is seeking indemnification. The indemnifying Party shall control the defense of the indemnified claim, including through choice of counsel, provided that the indemnified Party may appear at its own expense through its own counsel. The indemnifying Party may not settle any indemnified claim without the indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.
14. Limitation of Liability. DSTILLERY SHALL NOT BE LIABLE TO COMPANY OR ANY ADVERTISER, USER, WEB SITE VISITOR OR ANY OTHER THIRD PARTY FOR ANY LOSS, COST, DAMAGES OR EXPENSE INCURRED IN CONNECTION WITH ANY INFORMATION OR DATA INPUTTED INTO THE DSTILLERY PLATFORM BY COMPANY OR AT COMPANY’S REQUEST, INCLUDING ANY TECHNICAL MALFUNCTION, INPUTTING ERRORS, COMPUTER ERROR, CORRUPTION OR LOSS OF DATA, OR OTHER DAMAGE. DSTILLERY SHALL NOT BE LIABLE TO ANY THIRD PARTY FOR ANY LOSS, COST, DAMAGES OR EXPENSE INCURRED IN CONNECTION WITH COMPANY’S USE OF THE DSTILLERY PLATFORM. DSTILLERY SHALL NOT BE LIABLE TO ANY USER, WEB SITE VISITOR OR ANY OTHER THIRD PARTY FOR ANY PRODUCT OFFERED TO COMPANY IN THE DSTILLERY PLATFORM. EXCEPT FOR LIABILITY ARISING FROM INDEMNIFICATION, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS: (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO SUCH OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; AND (II) NEITHER PARTY’S LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE FEES, COSTS AND EXPENSES DUE TO DSTILLERY IN CONNECTION WITH THE CAMPAIGN TO WHICH THIS AGREEMENT RELATES.
15. Term. The term of this Agreement (“Term”) shall begin on the Effective Date and continue until the Company has completed the applicable Campaign using the Platform Services, unless earlier terminated as set forth herein. To the extent permitted by applicable law, either Party may terminate this Agreement immediately on written notice if (a) the other Party is in material breach of the Agreement or (b) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
16. Effect of Termination. Upon termination of this Agreement, (a) each Party’s revocable licenses to the other Party shall be automatically and immediately revoked, (b) Company shall cease all access and use of the Dstillery Platform, (c) each Party shall return all of the other Party’s Confidential Information (except for any materials that Dstillery may continue to use as expressly set forth herein), and (d) Company shall promptly pay to Dstillery all undisputed fees, costs and expenses accrued and unpaid through the effective date of the termination. Notwithstanding anything contained herein to the contrary, all such undisputed fees, costs and expenses shall be due on the effective date of termination and any claim for the payment of fees, costs and expenses shall survive termination. Sections 2(b) and (c), 3 (until all fees, taxes, and other expenses are paid), 6, 7, 8, 12, 13, 14, 16 and 17 will survive any termination of this Agreement.
17. Miscellaneous Provisions
    1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law principles. For any disputes arising out of this Agreement, the parties consent to personal and exclusive jurisdiction of, and venue in, the state or federal courts within New York, New York.
    2. Assignment. Neither Party may assign or transfer any rights or delegate any duties under this Agreement without the other Party’s prior written consent, except that either Party may assign or transfer this Agreement in connection with a sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction. Any purported assignment of transfer in violation of this Section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
    3. Entire Agreement, Waiver. This Agreement constitutes the entire agreement between the Parties and supersedes any prior understandings or discussions relating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only by a writing that is signed by duly authorized representatives of both Parties. No failure or delay on the part of either Party in exercising any right or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any such right or remedy preclude any exercise of any other right or remedy.
    4. Counterparts. This Agreement may be signed in multiple counterparts, and each such duly signed counterpart shall be deemed to be an original of this Agreement, provided, however, that each Party shall receive a counterpart fully signed by the other Party.
    5. Independent Contractor. Each Party is an independent contractor with respect to the other Party hereunder. This Agreement shall not be construed to (i) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the Parties or (ii) authorize any Party to enter into any commitment or agreement binding on the other Party.
    6. Force majeure. No Party shall be liable under this Agreement for (or deemed in breach of this Agreement by reason of) any failure, delay or interruption in performing any term or condition (except obligations to pay money) of this Agreement to the extent due to causes entirely beyond the control of such Party; subject however to the condition that such Party gives the other Party written notice thereof promptly and, in any event, within thirty (30) days of discovery thereof and uses commercially reasonable efforts to cure such cause. In the event of any such cause, the time for performance shall be extended for a period equal to the duration of such cause. Payment of fees, costs and expenses due hereunder shall not be subject to this provision.
    7. Enforceablility. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, then such portion shall be reformed or eliminated to the minimum extent necessary for this Agreement to be enforceable and legal, and this Agreement shall remain in effect in accordance with its provisions as modified by such reformation or elimination.
    8. Notices. All notices pursuant to this Agreement shall be in writing and delivered either personally, by overnight courier, by email (with no evidence of any delivery issue) or certified mail, and sent to the addresses set forth below.
    9. Publicity. Neither Party will issue any press releases regarding this Agreement without the other Party’s prior written consent.