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Social MSA

MASTER SUBSCRIPTION AGREEMENT

(For Canvs’ Surveys and Social Product Application)

This Master Subscription Agreement (this “Agreement”) is between Mashwork, Inc. d/b/a Canvs, a Delaware corporation (“Canvs”) with offices at 26 Broadway, New York, NY 10004, and Customer (as defined below).

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING A SERVICE ORDER OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, BY USING (OR MAKING ANY PAYMENT FOR) THE APPLICATION OR SERVICES, OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (i) AGREE TO THIS AGREEMENT ON BEHALF OF CUSTOMER; AND (ii) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU (OR CUSTOMER) DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE APPLICATION OR SERVICES.

Additional terms and details specific to each transaction (e.g., pricing or functionality of the Application) will be specified in a Service Order (as defined below). The parties agree as follows:

1.              Definitions.

1.1.           Application” means Canvs’ software-as-a-service platform and any related applications; in each case, as identified in the applicable Service Order. The “Application” includes all names, marks, logos, software, images, and other content Canvs makes available through its software-as-a-service platform and related applications (including the collection, design, production, selection, and arrangement thereof); and all Intellectual Property Rights arising out of or related to the foregoing.

1.2.           Authorized User” means employees and contractors of Customer and employees and contractors of any Customer affiliates; in each case, for whom Customer has paid all applicable fees to permit them to access and use the Application.

1.3.           Confidential Information” means any information that either party (“Discloser”) discloses to the other party (“Recipient”) during the term of this Agreement that is marked as confidential or would normally be considered confidential information under the circumstances. Confidential Information does not include information that Recipient can document (a) is independently developed by Recipient; (b) is rightfully given to Recipient by a third party without confidentiality obligations; or (c) becomes public through no fault of Recipient. Canvs’ Confidential Information includes non-public information regarding features, functionality, and performance of the Application; and Usage Data. Customer’s Confidential Information includes the Customer Data.

1.4.           Customer” means the organization, company, or other legal entity specifically identified as the “Customer” in the applicable Service Order or, if no such entity is specified, the organization, company, or other legal entity for which the individual indicating agreement to this MSA acts.

1.5.           Customer Data” means any data that is uploaded to the Application by Customer or its Authorized Users, or created by Customer or its Authorized Users using the Application. Customer Data includes Customer Social Data.

1.6.           Customer Social Data” means any social media data that is collected by Canvs on Customer’s behalf through Customer’s social media accounts or other publicly available digital content.

1.7.           Direct Social Data” means any social media data that is collected by Canvs from social media companies, such as Twitter, Inc. (“Twitter”).  Currently, only CanvsTV customers are subject to terms specific to Direct Social Data. 

1.8.           Effective Date” means the effective date of the first Service Order entered into between the parties.

1.9.           Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing.

1.10.        Personal Data” means includes “personal data,” “personal information,” and “personally identifiable information,” and such terms shall have the same meaning as defined by CCPA, GDPR or other applicable U.S. law.

1.11.        Services” means access to the Application, related support services described in this Agreement, and any configuration, customization, or consulting services specified in a Service Order or otherwise made available by Canvs to Customer.

1.12.        Service Order” means an ordering document (e.g., purchase order, statement of work, service order, etc.), or online order specifying the details of the Application or Services to be provided hereunder that is mutually agreed to between Customer and Canvs, including any addenda and supplements thereto. 

1.13.        Service Order Term” means the term of a Service Order, as specified in the applicable Service Order.

1.14.        Usage Data” means data relating to use of the Application that is aggregated in such a way that it is not associated with Customer.

2.              Access to Application.

2.1.           Service Orders. Each Service Order is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and a Service Order, this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order.

2.2.           Access to the Application. Subject to Customer’s payment of all Fees and compliance with this Agreement, Canvs hereby grants to Customer a non-exclusive, non-sublicenseable, and non-transferable right during the applicable Service Order Term to access and use the Application by and through its Authorized Users, solely in connection with Customer’s internal business purposes and in accordance with any scope limitations identified in the applicable Service Order.

2.3.           Access to Twitter Content. Subject to Customer’s compliance with this Agreement, Canvs hereby grants Customer a non-exclusive, royalty-free, non-transferable, non-sublicensable, revocable license during the applicable Service Order Term solely to internally access the Twitter Content through the Application solely in connection with Customer’s internal business purposes and in accordance with any scope limitations identified in the applicable Service Order. “Twitter Content” means Direct Social Data collected from Twitter.

2.4.           Support. Subject to Customer’s payment of all Fees and compliance with this Agreement, Canvs will use commercially reasonable efforts to provide technical support to Customer via email, during normal business hours, with the exclusion of U.S. federal holidays.

2.5.           Subcontractors. Canvs may use subcontractors or other third parties to perform its obligations under this Agreement, but Canvs will remain responsible for all such obligations.

3.              Restrictions and Responsibilities.

3.1.           General Use Restrictions. Except as expressly permitted in this Agreement or the applicable Service Order, Customer will not, and will not permit or authorize third parties to: (a) license, sub-license, sell, transfer, distribute, share, rent, lease, or otherwise permit third parties to use the Services; (b) use the Services to provide services to third parties (e.g., as a service bureau or agency); (c) use Services in any way that would violate this Agreement; (d) circumvent or disable any security or other technological features of the Services; (e) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Services; (f) modify, translate, or create derivative works based on the Services; (g) remove any proprietary notices or labels from the Services; (h) use the Services in a manner that violates or attempts to circumvent applicable law; (i) use the Services to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Services; or (j) access the Services in order to develop a competing product or service. This Section 3.1 will apply solely to the extent not prohibited by applicable law.

3.2.           Direct Social Data. Customer acknowledges that Canvs uses Direct Social Data to provide some or all of the Services. Under no circumstances may Customer use Direct Social Data for or in connection with ranking episodes, programs, or networks based solely on Direct Social Data. Except as expressly permitted in this Agreement or the applicable Service Order, Customer will not, and will not permit or authorize third parties to: (a) copy, download, reverse engineer, decompile, decode, disclose, distribute or provide access by any third party to the Direct Social Data, or any derivative work based on the Direct Social Data; or (b) distribute or provide access to the Direct Social Data to any third parties. Customer’s use of Twitter Content is subject to and governed by Twitter’s Privacy Policy, Terms of Service, the Twitter Developer Agreement and Policy, the Display Requirements, the Brand Resources, and other terms and restrictions applicable to use of such Twitter Content as the same may be updated by Twitter from time to time, located at https://developer.twitter.com/en/developer-terms. In addition, except as expressly authorized by this Agreement, Customer may not, without Canvs’ prior written consent: (a) reference any portion of the Services in a press release, advertisement, publication or the mass media; (b) attempt to reverse engineer the Twitter user ID hashes or otherwise identify impressed users; or (c) reference, disclose, or make any portion of the Services available to any Restricted Users (as defined in Section 3.3. Further, as part of Customer’s access to Twitter Content under this Agreement, the parties hereby agree that Twitter is the licensor of the Twitter Content, is as an express third-party beneficiary of this Agreement, is entitled to enforce the terms, conditions, and restrictions regarding the use of the Twitter Content against Customer, and is further entitled to preliminary or injunctive relief if Customer breaches or otherwise violates this Agreement.

3.3.           Restricted Users. Direct Social Data may not be used by, or on behalf of, directly or indirectly, in any capacity whatsoever, the Restricted Users. If Customer uses Direct Social Data for or on behalf of any of the Restricted Users, Customer will immediately notify Canvs. Any breach of this Section 3.3 will be considered a material breach of this Agreement. The entities listed below may be updated by Canvs, at any time and in its sole discretion, upon notice to Customer. “Restricted Users” means the following entities:

3.3.1.       Shareablee, Listenfirst, MVPIndex, Gumgum, Blinkfire, Brandwatch, Socialbakers, Netbase, Khoros, Sprout Social, Sprinklr, Synthesio/Ipsos, Hootsuite, Meltwater, and Cision,

3.3.2.       any government related entity or those entities who service them, without prior written approval from Canvs,

3.3.3.       any entities, governments, or otherwise from sanctioned countries, as defined by Applicable Law, or,

3.3.4.       any entities, governments, or otherwise located in Afghanistan, Belarus, Burma, Central African Republic, Democratic Republic of Congo, Crimea, Cuba, Eritrea, Guinea, Iran, Iraq, Libya, North Korea, Somalia, South Sudan, Sudan, Syria, Venezuela, Yemen, Zimbabwe.

3.4.           Authorized Users. Customer is responsible and liable for all actions and inactions by its Authorized Users or by any third party that Customer or its Authorized Users permit to access or use the Services, as if such action or inaction were an action or inaction of Customer. Customer is responsible for maintaining control over Customer’s account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Customer’s account and its Authorized Users’ accounts. Each Application account login provided to an Authorized User is personal to that specific individual and may not be transferred, sold or otherwise assigned to or shared with any other individual or entity. Customer will not, and will not permit Authorized Users to, share account credentials, or use them in multiple locations at the same time.

4.              Customer Data, Personal Data, and Usage Data.

4.1.           Customer Data. Customer hereby grants to Canvs a non-exclusive, worldwide, royalty-free, fully-paid, sublicensable license to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Customer Data, in any media or distribution methods now known or later developed; in each case, solely as necessary for Canvs to provide the Application and Services to Customer during the applicable Service Order Term, and in accordance with the settings on Customer’s account and the features of the Application Customer elects to utilize.

4.2.           Customer Social Data. Customer may, from time to time, provide Canvs with access to its social media accounts by sharing Customer’s social media account login information. Canvs will use the Customer Social Data solely as necessary to provide the Application and Services to Customer during the applicable Service Order Term. Customer is responsible for maintaining control over Customer’s social media account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Customer’s social media accounts. Canvs is neither responsible nor liable for any social media account activity.

4.3.           Processing of Personal Data. Canvs does not need, utilize, require, or suggest uploading Personal Data for the purpose of generating analysis in the Application. In fact, Customer acknowledges that it is highly discouraged from uploading Personal Data into the Application. Customer will take all commercially reasonable efforts to limit the Personal Data it uploads into the Application or otherwise makes available to Canvs for processing on its behalf. Notwithstanding the foregoing or anything to the contrary in this Agreement, Customer shall in no event upload into the Application or otherwise make available to Canvs for processing on its behalf any sensitive Personal Data, including any health-related information (including PHI subject to the HIPAA), genetic data, biometric information, financial account information, and information from government-issued documents.

4.4.           Compliance with Privacy Laws. If Customer will provide or make available to Canvs, or Canvs will otherwise process on behalf of Customer any EU personal data subject to the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”), Customer will notify Canvs prior to any such processing and the parties will enter into Canvs’ Data Processing Agreement addressing the parties’ respective obligations under the GDPR. If Customer will provide or make available to Canvs, or Canvs will otherwise process on behalf of Customer any personal information subject to the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq, as amended (“CCPA”), Customer will notify Canvs prior to any such processing and the parties will enter into Canvs’ CCPA Addendum addressing the parties’ respective obligations under the CCPA.

4.5.           Usage Data. Canvs may collect and analyze Usage Data and other information relating to the provision, use, and performance of various aspects of the Application and related systems and technologies (including information provided by third-party analytical tools). Canvs may analyze, copy, process, collect, use, disclose, and reproduce Usage Data for any purpose, including for the purposes of: (a) complying with a regulatory inquiry or judicial action of a governmental body; and (b) actively or passively, improving the Application, and developing new products, services, features, and functionality. Canvs shall own all right, title and interest in Usage Data. For the avoidance of doubt, Usage Data shall not be considered Confidential Information.

5.              Confidentiality. Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information, and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 5, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under Applicable Law), or any Confidential Information that is required to be disclosed by applicable law.

6.              Ownership.

6.1.           Canvs IP. Canvs and its licensors own the Services, Work Product, and Usage Data, including all Intellectual Property Rights therein (the “Canvs IP”). The Canvs IP is protected by copyright law and other applicable law. No ownership rights in the Canvs IP are transferred to Customer by this Agreement. Customer does not have any rights in or to the Canvs IP except for the limited express rights granted in this Agreement.

6.2.           Trademarks. Canvs has acquired, and is the owner of, common law or registered trademark rights in the name and word mark “Canvs” and in the other marks and design marks displayed on the Services. Customer may not use Canvs’ name or marks in connection with any product or service that is not Canvs’, or in any manner that is likely to cause confusion. All use of the foregoing name and marks by Customer will inure exclusively to the benefit of Canvs. All marks shown on the Services but not owned by Canvs are the property of their respective owners.

6.3.           Customer Data. Customer and its licensors own the Customer Data, including all Intellectual Property Rights therein. No ownership rights in the Customer Data are transferred to Canvs by this Agreement. Canvs does not have any rights to the Customer Data except for the limited express rights granted in this Agreement.

6.4.           Feedback. If Customer provides to Canvs (either on its own accord or at the request of Canvs) feedback, analysis, suggestions and comments (including, but not limited to, bug reports and test results, and design suggestions or ideas) related to the Application or Services (collectively, “Feedback”) Customer hereby assigns to Canvs all right, title and interest in and to any such Feedback to Canvs and acknowledges that Canvs is free to use the Feedback without payment or restriction.

7.              Fees and Payment Terms.

7.1.           Fees. Customer will pay Canvs all fees described in all Service Orders (the “Fees”) in accordance with the terms therein. If Customer believes that Canvs has billed Customer incorrectly, Customer must contact Canvs no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. All Fees are non-refundable, except as otherwise specified in this Agreement.

7.2.           Payment Terms. Unless otherwise set out in the Service Order, Fees are payable annually in advance. Canvs may bill Customer through an invoice, in which case, unless otherwise specified in a Service Order, full payment for invoices issued in a given month is due 30 days after the date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by applicable law, whichever is lower, plus all expenses of collection, and may result in immediate termination of access to the Services. Customer will pay all Fees in U.S. Dollars. If Customer elects to make payment via credit card, additional fees may apply. Canvs may suspend access to the Services if Customer fails to make any payment due within 10 business days after Canvs provides notice of the failure. Suspension of the Services by Canvs under this Section 7.2 does not relieve Customer of its payment obligations under this Agreement. Canvs will not be liable to Customer nor to any third party for any suspension of the Services pursuant to this Section 7.2.

7.3.           Taxes. Other than federal and state net income taxes imposed on Canvs, Customer will bear all taxes, duties, and other governmental charges relating to the Services.

8.              Term and Termination.

8.1.           Term. This Agreement will take effect on the Effective Date and will continue in effect until terminated as provided herein (the “Term”). In the event that there are no outstanding Service Orders, either party can terminate this Agreement for any reason upon 30 days written notice to the other.

8.2.           Termination Events. Either party may terminate this Agreement or any Service Order effective upon written notice to the other party, if the other party materially breaches this Agreement (or a Service Order) and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. Canvs may terminate or suspend this Agreement or any part of it immediately upon written notice to Customer without a cure period if Customer breaches Sections 3 (Restrictions and Responsibilities) or 5 (Confidentiality). Either party may terminate this Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

8.3.           Termination of Direct Social Data. Canvs can terminate this Agreement or any portion of the Services upon 10 days’ written notice if Direct Social Data is or will become unavailable.

8.4.           Survival and Termination Obligations. Termination of this Agreement will automatically terminate all active Service Orders, but termination of a single Service Order will not result in termination of this Agreement or any other Service Orders. Upon the termination of this Agreement or a Service Order, all rights and licenses granted by Canvs to Customer under this Agreement or the applicable Service Order will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.

8.5.           Post-Termination Obligations. Upon any termination of this Agreement or any Service Order, Canvs will make all Customer Data then held on Customer’s behalf by Canvs pursuant to this Agreement or the applicable Service Order available to Customer for electronic retrieval for a period of 14 days. After such period, Canvs may, but is not obligated to, delete any such Customer Data. If Customer terminates this Agreement for Canvs’ material breach, or if Canvs terminates this Agreement under Section 8.3, Customer will pay a pro rata amount of the Fees for any terminated Services up to and including the last day on which the Services are provided, and Canvs will refund any pre-paid Fees for Services not yet provided. If this Agreement is terminated for any other reason, Canvs will not refund Customer any Fees paid, and within 10 days after such termination, Customer will pay Canvs all remaining Fees owed under any terminated Service Orders. The following sections of this Agreement will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 2.1 (Service Orders), 2.5 (Subcontractors), 3 (Restrictions and Responsibilities), 4.7 (Usage Data), 5 (Confidentiality), 7 (Fees and Payment Terms), 8.3 (Survival and Termination Obligations), 8.4 (Post-Termination Obligations), 10 (Indemnification), 11 (Limitations of Liability), and 12 (Miscellaneous).

9.              Representations and Warranties; Disclaimer.

9.1.           Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (c) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms of any other agreement to which it is a party or by which it is otherwise bound.

9.2.           Canvs Warranties. Canvs represents and warrants to Customer that: (a) Canvs will perform the Services in a good and workmanlike manner in accordance with industry standards; and (b) the Application will conform with its published documentation in all material respects.

9.3.           Customer Warranties. Customer represents and warrants to Canvs that: (a) Customer has and will maintain all necessary rights to authorize Canvs to use the Customer Data in accordance with this Agreement; and (b) Customer will use the Services in compliance with its published documentation and applicable law.

9.4.           Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND THE PARTIES HEREBY DISCLAIM ALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE APPLICATION OR SERVICES.

10.            Indemnification.

10.1.        By Canvs.

10.1.1.    Defense. At Customer’s option and request, Canvs will defend Customer from any actual or threatened third-party claim, proceeding, suit, action, or inquiry arising out of or based on an allegation that Customer’s use of the Application in accordance with this Agreement infringes a third-party Intellectual Property Right (a “Canvs Indemnifiable Claim”). If Customer requests Canvs to defend it from any Canvs Indemnifiable Claim, Customer will: (a) give Canvs prompt written notice of the Canvs Indemnifiable Claim; (b) grant Canvs full and complete control over the defense and settlement of the Canvs Indemnifiable Claim; (c) provide assistance in connection with the defense and settlement of the Canvs Indemnifiable Claim as Canvs may reasonably request; and (d) comply with any settlement or court order made in connection with the Canvs Indemnifiable Claim. Notwithstanding the previous sentence, Canvs will not enter into any settlement that involves an admission of guilt or liability of Customer without Customer’s prior written consent. Customer may participate in the defense of a Canvs Indemnifiable Claim at its own expense and with counsel of its own choosing.

10.1.2.    Indemnification. Canvs will indemnify Customer from and pay: (a) all damages, costs, fines, judgments, expenses, and attorneys’ fees reasonably incurred by Customer in any Canvs Indemnifiable Claim; (b) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by Customer in connection with the defense of an Canvs Indemnifiable Claim (other than attorneys’ fees and costs incurred without Canvs’ consent after Canvs has accepted defense of the Canvs Indemnifiable Claim); and (c) all amounts that Canvs agrees to pay to any third party to settle any Canvs Indemnifiable Claim.

10.2.        By Customer.

10.2.1.    Defense. At Canvs’ option and request, Customer will defend Canvs and its officers, directors, employees, agents, service providers, licensors, and affiliates (collectively, the “Canvs Indemnified Parties”) from any actual or threatened third-party claim, proceeding, suit, action, or inquiry arising out of or based on Company’s breach of Section 9 (Representations and Warranties) or Section 3 (Restrictions and Responsibilities) (each, a “Customer Indemnifiable Claim”). If Canvs requests Customer to defend it from any Customer Indemnifiable Claim, Canvs will: (a) give Customer prompt written notice of the Customer Indemnifiable Claim; (b) grant Customer full and complete control over the defense and settlement of the Customer Indemnifiable Claim; (c) provide assistance in connection with the defense and settlement of the Customer Indemnifiable Claim as Customer may reasonably request; and (d) comply with any settlement or court order made in connection with the Customer Indemnifiable Claim. Notwithstanding the previous sentence, Customer will not enter into any settlement that involves an admission of guilt or liability of Canvs without Canvs’ prior written consent. Canvs may participate in the defense of a Customer Indemnifiable Claim at its own expense and with counsel of its own choosing.

10.2.2.    Indemnification. Customer will indemnify the Canvs Indemnified Parties from and pay: (a) all damages, costs, fines, judgments, expenses, and attorneys’ fees reasonably incurred by the Canvs Indemnified Parties in any Customer Indemnifiable Claim; (b) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by the Canvs Indemnified Parties in connection with the defense of a Customer Indemnifiable Claim (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Customer Indemnifiable Claim); and (c) all amounts that Customer agrees to pay to any third party to settle any Customer Indemnifiable Claim.

10.3.        IP Infringement. If the Application is held to infringe (or if Canvs reasonably believes will be held to infringe) any third-party Intellectual Property Rights, Canvs may, at its option and expense: (a) modify the Application to make it non-infringing; or (b) obtain a license that permits Customer to continue using the Application. If Canvs does not believe either option is reasonably practicable, Canvs may terminate this Agreement. Canvs will have no obligation for any infringement of Intellectual Property Rights relating to the Application to the extent that arising out of: (a) use of the Application in combination with other products or services; (b) designs, requirements, or specifications required by or provided by Customer; (c) use of the Application in breach of this Agreement or outside the scope of the license granted to Customer; or (d) any modification of the Application not made or authorized in writing by Canvs. Section 10.1 states Canvs’ sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third-party Intellectual Property Rights arising from Customer’s use of the Services.

11.            Limitations of Liability.

11.1.        Exclusion of Damages. Neither Canvs nor its suppliers, officers, affiliates, representatives, contractors, or employees will be liable to Customer for any consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, including lost profits, loss of business, or loss of data, even if Canvs is apprised of the likelihood of such damages occurring.

11.2.        Damages Cap. Canvs’ total liability of all kinds arising out of or related to this Agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, will not exceed the Fees paid by Customer to Canvs during the six months immediately preceding the claim (determined as of the date of any final judgment in an action).

11.3.        Basis of the Bargain. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by Canvs to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 11 (Limitations of Liability) will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.

11.4.        Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 11 will apply to Customer solely to the extent permitted by applicable law.

12.            Miscellaneous.

12.1.        Governing Law. This Agreement will be governed by the laws of the United States and the State of New York, without reference to conflict of laws principles. Any dispute between the parties regarding this Agreement will be subject to the exclusive venue of the state and federal courts in New York County, New York. The parties hereby consent to the exclusive jurisdiction and venue of such courts. In any proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

12.2.        Assignment. Neither party may assign this Agreement or delegate its performance without the other party’s prior written consent, and any attempt to do so is void; except either party may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates without the other party’s prior written consent. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.

12.3.        Notices. All notices under this Agreement must be in writing, and will be considered given: (a) upon delivery, if delivered personally or by internationally recognized courier service; (b) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (c) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section 12.3. All notices to Canvs will be sent to:

Mashwork, Inc. d/b/a Canvs

26 Broadway, New York, NY 10004

E-mail: [_]

Attn: [_]

12.4.        Force Majeure. Canvs will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond Canvs’ reasonable control (a “Force Majeure Event”), so long as Canvs uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes Canvs to delay or fail to perform its obligations under this Agreement for 30 consecutive days, either party may terminate this Agreement.

12.5.        No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

12.6.        Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.

12.7.        Integration. If Customer and Canvs have negotiated and fully executed an agreement for Services, such negotiated agreement is not affected by this Agreement unless specifically provided otherwise in a writing signed by both parties. Subject to the foregoing, this Agreement (including any Service Orders) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties. No other terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that Customer may use in connection with the subject matter hereof will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Canvs to object to such terms, provisions, or conditions.

12.8.        Export; Government Rights. Each party will comply with all Applicable Law in connection with exercising its rights or performing its obligations under this Agreement, including applicable export laws and any law relating to bribery and corruption. Under these laws, the Services, Application or Direct Social Data may not be sold, leased, downloaded, moved, exported, re-exported, or transferred across borders without a license, or approval from the relevant government authority, to any country, including countries embargoed by the U.S. Government (currently Cuba, Iran, North Korea, Northern Sudan and Syria); or to any restricted or denied end-user including, but not limited to, any person or entity prohibited by the U.S. Office of Foreign Assets Control; or for any restricted end-use. Customer represents and warrants that Customer and its Authorized Users are not located in, under the control of, or a national or resident of any country on the United States Commerce Department’s Table of Denial Orders. As defined in FAR section 2.101, the Application and Services are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.

12.9.        Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties. There are no third-party beneficiaries of this Agreement.

12.10.      Publicity. Canvs may use Customer’s trademark, trade name, and logo to publicly identify Customer as a customer of Canvs. Canvs will comply with any brand guidelines or standards that Customer provides from time to time. Any goodwill that accrues from Canvs’ use of Customer’s trademark, trade name, and logo hereunder will inure solely to Customer.

12.11.      Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.

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