Branding Central^® Terms of Use

The following Branding Terms of Use (”Terms”) constitutes a legal agreement between you or the entity or company that you represent (”Customer” or “You”) and Adams & Knight (”Adams & Knight”), which governs Customer’s (a) access to the website and (b) use of the Branding Central Modules and services (”Branding Central”). Customer’s use of Branding Central is subject to (a) the Terms set forth below and (b) Adams & Knight’s Privacy Policy (where applicable), found at https://www.adamsknight.com/privacy and incorporated herein by reference, so please take the time to fully understand how these Terms and Adams & Knight’s Privacy Policy govern Customer’s relationship with Adams & Knight and Customer’s use of Branding Central.

CUSTOMER’S RIGHT TO USE BRANDING CENTRAL IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. BY CLICKING ON THE “ACCEPT” BUTTON AND/OR USING BRANDING CENTRAL, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS. NOTWTIHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN A PREVIOUSLY EXECUTED OR FUTURE SERVICE AGREEMENT, PURCHASE ORDER OR STATEMENT OF WORK BETWEEN CUSTOMER AND ADAMS & KNIGHT, THESE TERMS SHALL GOVERN WITH RESPECT TO CUSTOMER’S USE OF BRANDING CENTRAL. IF YOU ARE ACCESSING BRANDING CENTRAL ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE BRANDING CENTRAL.

1. Definitions
   • “Confidential Information” means all trade secrets, know­how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to these Terms (such disclosing party, the “disclosing party”) and received by another party (the “receiving party”), but not including any information the receiving party can demonstrate (a) is already rightfully known by it without restriction, (b) rightfully furnished to it by a third party without restriction and without breach of any obligation to the disclosing party, (c) generally available to the public without breach of these Terms or (d) independently developed by it without reliance on the Confidential Information of the disclosing party. All pricing information is Adams & Knight’s Confidential Information.
   • “Authorized User” means Customer, its affiliated companies and their authorized users, including their employees, agents, contractors, members, customers or providers
   • “Content” means all text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials that may be viewed on, accessed through, or contributed to Branding Central.
   • “Customer Content” means Content contributed to Branding Central by Customer or its Authorized Users.
   • “Customer Data” means all Customer registration information and other transaction data collected, processed and retained by Adams & Knight in connection with providing Branding Central.
   • “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented
   • “Hosting Environment” means the physical environment where hosting services are offered from. Specifics are more fully described in the applicable Statement of Work.
   • “Module” means an individual component of Branding Central that enables users to perform specific functions. Each Module (and its specific functions and attributes) is more fully described in the applicable Statement of Work.
   • “Services” means the services provided by Adams & Knight to Customer under these Terms.
   • “Statement of Work or SOW” means a document entered into between Adams & Knight and Customer that describes the services provided by Adams & Knight to Customer in the design, customization, implementation and operation of one or more Modules.
   • “Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by Customer.
   • “Updates” means any patch, revision or update to Branding Central delivered by Adams & Knight (or a third party vendor or service provider on Adams & Knight’s behalf).
2. Services
   1. Services.
      Subject to these Terms, Adams & Knight will use commercially reasonable efforts to provide Branding Central. At its option, and in its sole discretion, Adams & Knight may provide Branding Central to Customer directly, or indirectly using contractors or other third party vendors or service providers.
   2. Prohibited Uses.
      As a condition of use of Branding Central, You shall not use Branding Central for any purpose that is prohibited by these Terms. By way of example, and not as a limitation, You shall not upload, submit, distribute, facilitate any of the foregoing, or otherwise use Branding Central or interact with Branding Central in a manner that:
      • infringes or violates the intellectual property rights or any other rights of any other person or entity (including Adams & Knight);
      • violates any law or regulation;
      • is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, pornographic, contains or depicts nudity, or otherwise objectionable, as determined by Adams & Knight in its sole discretion;
      • jeopardizes the security of your Adams & Knight account or anyone else’s (such as allowing someone else to log in to Branding Central as You) attempts, in any manner, to obtain the password, account, or other security information from any other user;
      • violates the security of any computer network, or cracks any passwords or security encryption codes;
      • runs any form of auto­responder or “spam” on Branding Central, or any processes that run or are activated while You are not logged into Branding Central, or that otherwise interfere with the proper working of Branding Central (including by placing an unreasonable load on Branding Central’s infrastructure);
      • “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to Branding Central or Content (through use of manual or automated means);
      • copies or stores any significant portion of the Content;
      • decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to Branding Central.
      Additionally, You shall not (directly or indirectly) or permit any third party to: (a) use any of Adams & Knight’s Confidential Information to create any software, documentation or service that is similar to Branding Central or any documentation provided in connection therewith; (b) modify, translate, or otherwise create derivative works of any part of Branding Central, or (c) copy, license, sublicense, sell, resell, encumber, rent, lease, time­share, distribute, transfer or otherwise use or exploit or make available Branding Central in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of Adams & Knight. [You shall abide by all applicable local, state, national and international laws and regulations, including, without limitation, any export control laws or regulations of the United States of America or any other relevant jurisdiction.] Finally, You must be a human. Access to Branding Central by “bots” or other automated methods is not permitted.
   3. Changes to Modules or Services.
      Adams & Knight reserves the right to modify or discontinue any Modules or Services (in whole or in part) at any time.
   4. Changes to these Terms.
      Adams & Knight reserves the right to change these Terms at any time by placing a notice on the Adams & Knight website, by sending You an email, and/or by some other means. You may reject the new terms, but, by rejecting the new terms, You will no longer be able to use Branding Central. If You use Branding Central in any way after a change to the terms becomes effective, You will be deemed to have accepted and agreed to the new terms. Except for changes as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both You and Adams & Knight.
   5. Limitations.
      Adams & Knight will not be responsible or liable for any failure in Branding Central resulting from or attributable to (a) Customer’s Systems, (b) network, telecommunications or other service or equipment failures outside of Adams & Knight’s facilities, (c) Customer’s or third party’s products, services, negligence, acts or omissions in violation of these Terms, (d) any force majeure or cause beyond Adams & Knight’s reasonable control, (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by You or any third parties.
   6. Systems.
      Customer shall obtain and operate all Systems needed to connect to, access or otherwise use Branding Central, and provide all corresponding backup, recovery and maintenance services. Customer shall ensure that all Systems are compatible with Branding Central. Customer shall maintain the integrity and security of its Systems (physical, electronic and otherwise).
3. Support and Maintenance
   1. Updates.
      Adams & Knight shall have no obligation to provide Updates, except that Adams & Knight will provide Customer with any Update that it makes generally available without charge to its similar customers.
4. Proprietary Rights
   1. Services.
      Except for Customer Content, Adams & Knight (and its licensors) own all right, title and interest in and to Branding Central and all modifications, enhancements and Updates to Branding Central (including all intellectual property and proprietary rights embodied therein) and provide this material to you under a license that is revocable at any time in Adams & Knight’s sole discretion. Adams & Knight reserves all rights not expressly granted hereunder. Customer shall not take any action inconsistent with such rights. Adams & Knight neither warrants nor represents that your access to and/or use of Branding Central will not infringe rights of third parties not affiliated with Adams & Knight.
      
      You may access, copy, download and print the Adams & Knight Content, provided you do not modify or delete any copyright, trademark or other proprietary notice that appears on the material you access, copy, download or print. Any other use of the Adams & Knight Content, including but not limited to the modification, distribution, transmission, performance, broadcast, publication, uploading, licensing, reverse engineering, transfer or sale of, or the creation of derivative works from, any material, information, software, products or services obtained from access to or use of Branding Central for purposes competitive to Adams & Knight, is expressly prohibited. You agree to abide by all additional restrictions displayed on the website as it may be updated from time to time. You may not use any information contained on website other than in connection with Branding Central. Access to the website is limited to viewing the linked web pages solely for legitimate business purposes and to access Branding Central. Any access, or attempt to access, other areas of Adams & Knight’s computers system or other information contained on such systems for any purposes is strictly prohibited. Any intentional damage to or intentional interruption of Adams & Knight’s computer systems, as well as computer resources and/or system service, or carrying on of personal business or illegal activities will be cause for termination of these Terms. You agree to hold Adams & Knight, its affiliates, their licensors or content providers harmless for damages and losses incurred as a result of misuse of Branding Central.
      
      You may not use contact information provided on the website for unauthorized purposes, including marketing. You may not use any hardware or software intended to damage or interfere with the proper working of the website or to surreptitiously intercept any system, data or personal information from the website. You agree not to interrupt or attempt to interrupt the operation of the website in any way. Adams & Knight reserves the right, in its sole discretion, to limit or terminate your access to or use of the website at any time without notice. Termination of your access or use will not waive or affect any other right or relief to which Adams & Knight may be entitled at law or in equity.
   2. Customer Content.
      Customer owns all right, title and interest in and to the Customer Content. You will retain ownership of such Customer Content, and you grant Adams & Knight and its designees a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of sublicense (through multiple tiers), to use, reproduce, distribute (through multiple tiers), create derivative works of and publicly display such Customer Content solely in connection with the production or provision of any product or service you request or to show you how your Customer Content would appear in Adams & Knight products or services. For example, when you place an order for a product, Adams & Knight will prepare, manipulate (if necessary), and transmit the Customer Content for production, packaging and shipment.
      
      Although You retain ownership of Customer Content, any template or layout in which You arrange or organize such Customer Content through tools and features made available through Branding Central are not proprietary to You, and the rights to such template or layout will remain with Adams & Knight.
      
      You represent and warrant that You own or otherwise possess all necessary rights with respect to the Customer Content, and that the Customer Content do not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trade secret right or other intellectual property or other property right of any third party, and that the Customer Content are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.
      
      You consent to the use of your likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in Customer Content to use such individual’s likeness, for purposes of using and otherwise exploiting the Customer Content in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual’s parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request). If you do submit a submission that contains the likeness of an identifiable individual under the age of eighteen (18), we strongly encourage you not to include any identifying information (such as the individual’s name or address) with such Customer Content.
      
      You agree that Adams & Knight may (but is not obligated to) filter any Customer Content (including, without limitation, deleting or replacing expletives or other harmful or offensive language), refuse to use any Customer Content (including, without limitation, suspending processing and shipping of any order relating to any Customer Content) and/or disclose any Customer Content and the circumstances surrounding the use thereof, to any third party in order to provide the applicable products or services, to enforce these Terms or to comply with legal obligations or governmental requests.
   3. Customer Data.
      As between the parties, Customer shall own all Customer Data. Adams & Knight shall not disclose to third parties or use any Customer Data except as reasonably necessary to provide Branding Central or to comply with any legal, regulatory or similar requirement or investigation. Notwithstanding the foregoing, during and after the term of these Terms, Adams & Knight may use Customer Data, as combined with other Adams & Knight customers’ data, to improve and/or market Branding Central. Customer hereby grants Adams & Knight a nonexclusive and royalty­free right and license to use the Customer Data solely for the purposes described above. Customer agrees to create archival copies or backup copies of all Customer Data.
   4. Responsibility for Your Data.
      You must ensure that your use of Branding Central and all Your Data complies at all times with these Terms and all applicable local, state, federal and international laws and regulations (”Laws”). Adams & Knight assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
      
      You will neither submit nor use Branding Central to collect: (i) any personally identifiable information, except as necessary for the establishment of your Adams & Knight account; (ii) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; or (iii) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) ((i) through (iii), collectively, “Sensitive Data”). You also acknowledge that Adams & Knight is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that Branding Central Services are not HIPAA compliant. Notwithstanding any other provision to the contrary, Adams & Knight has no liability under this Agreement for Sensitive Data.
5. Confidentiality
   1. Confidentiality.
      Except for the specific rights granted by these Terms, the receiving party shall not use or disclose any of the other’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of these Terms and (b) are bound by obligations of confidentiality at least as protective as those provided herein. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose these Terms without the prior consent of the other party in connection with any financing transaction or due diligence inquiry if the party to whom such information is disclosed is bound by confidentiality obligations substantially similar to those herein and the party disclosing such information is responsible for any breaches of confidentiality by the party to whom such information is disclosed.
   2. Compelled Disclosure.
      Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency, or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
   3. Effect of Termination
      Promptly after any termination of these Terms (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Notwithstanding the foregoing, Adams & Knight may retain and use Customer Data, as combined with other Adams & Knight customers’ data, solely to improve and/or market Branding Central, even after termination of the provision of Services to You.
6. Payments
   1. Fees.
      Customer agrees to pay Adams & Knight the fees for the Modules selected by Customer as specified in the applicable Statement of Work.
   2. Payment Terms.
      Branding Central charges are billed in advance on a monthly or annual basis, depending upon which payment plan is negotiated by Customer and Adams & Knight. Adams & Knight will not provide refunds or credits in the event of cancellations, downgrades, or when there are unused portions of Branding Central on an open account. For any Services upgrade, any additional fee assessed for the remainder of the current term (i.e. either month or year) will automatically be charged to the Customer’s credit card at the time of the upgrade. All future recurring charges for Branding Central will follow the monthly or annual billing cycle (as determined by the Customer and Adams & Knight).
   3. Taxes.
      All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes). You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with Branding Central, excluding taxes based upon Adams & Knight’s net income. All amounts due hereunder shall be grossed­up for any withholding taxes imposed by any foreign government.
7. Limited Warranty and Disclaimers
   1. Limited Warranty.
      Adams & Knight warrants that it will provide Branding Central in a manner consistent with general industry standards reasonably applicable to the provision thereof. Notwithstanding the foregoing, Branding Central may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by Adams & Knight to repair, maintain or upgrade Branding Central or for causes beyond Adams & Knight’s reasonable control. Adams & Knight will notify Customer at least 48 hours in advance of any known or planned Version related outages.
   2. Disclaimers.
      EXCEPT AS SPECIFICALLY PROVIDED HEREIN, BRANDING CENTRAL IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. ALL IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR SATISFACTORY QUALITY ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. NEITHER ADAMS & KNIGHT, ITS EMPLOYEES, AFFILIATES, AGENTS, CONSULTANTS, SUB-CONTRACTORS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE BRANDING CENTRAL MODULES AND HOSTED ENVIRONMENT OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE BRANDING CENTRAL MODULES AND HOSTED ENVIRONMENT. ADAMS & KNIGHT IS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S AUTHORIZED USERS VIA THE BRANDING CENTRAL MODULES AND HOSTED ENVIRONMENT PROVIDED BY ADAMS & KNIGHT. ADAMS & KNIGHT DOES NOT WARRANT THAT BRANDING CENTRAL WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR­FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, ADAMS & KNIGHT HEREBY DISCLAIMS (FOR ITSELF AND ITS AFFILIATES, AGENTS, CONSULTANTS, SUB-CONTRACTORS, LICENSORS OR THE LIKE) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO BRANDING CENTRAL INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON­INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR OR SPECIFIC PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
8. Indemnity
   1. General
      You agree to indemnify and hold Adams & Knight, its directors, officers, shareholders, employees, contractors, agents, representatives, affiliates, and third party users harmless from and against any and all third party claims, causes of action, liabilities, damages, losses, expenses and costs (including, without limitation, attorneys’ fees) that arise directly or indirectly out of or from: (i) your violation of these Terms, any other agreement with Adams & Knight, any representation or warranty contained herein or therein or any applicable law; (ii) your Customer Content; (iii) your activities in connection with obtaining any products or services from us, or (iv) any activity related to access to or use of your account by You or any other person.
   2. Infringement
      Subject to the provisions of this Section, Customer and Adams & Knight each agree to defend the other against any third party action to the extent that such action is based on a claim that Customer Data or the Customer Content, in the case of Customer, and the Services, the Deliverables, Content (not mandated by Customer), in the case of Adams & Knight, or the Confidential Information provided by or on behalf of the other Party (each an “Indemnified Item”), (i) infringes a copyright under United States or other applicable law, (ii) infringes a patent granted under United States or other applicable laws, or (iii) constitutes an unlawful disclosure, use or misappropriation of another party’s proprietary rights or trade secret. The indemnitor will bear the expense of such defense and pay any damages and reasonable attorneys’ fees that are attributable to such claim and finally awarded by a court of competent jurisdiction.
      
      If an Indemnified Item becomes the subject of a claim under this Section, or in the indemnitor’s opinion is likely to become the subject of such a claim, then the indemnitor may, at its option, (i) modify the Indemnified Item to make it non-infringing or cure any claimed misuse of another’s trade secret, provided such modification does not adversely affect the functionality of the Indemnified Item, (ii) procure for the indemnitee the right to continue using the Indemnified Item pursuant to these Terms, or (iii) replace the Indemnified Item with an Indemnified Item that is substantially equivalent and that is non-infringing or that is free of claimed misuse of another’s trade secret. Any costs associated with implementing any of the above alternatives will be borne by the indemnitor. If none of the foregoing courses of action is practical, the allegedly infringing Indemnified Item will be withdrawn, and the scope and charges will be equitably adjusted to reflect such withdrawal.
      
      With respect to any software provided or developed by a Party pursuant to these Terms, such Party will have no liability to the other Party under this Section, (i) to the extent that any claim of infringement is based upon the use of the software in connection or in combination with equipment, devices or software not supplied by that Party or use of the software in a manner for which the software was not designed, (ii) for infringements that arise solely as a result of the implementation by that Party of functionality requirements presented by the other Party where there is no non-infringing alternative to such implementation, and the other Party has been so advised by that Party prior to implementation, and (iii) for fixes, updates, modifications, enhancements and improvements to the software made by any Party other than that Party or its subcontractors (unless directed to do so by the other Party, and there was no non-infringing alternative to accomplish such modification, enhancement or improvement).
   3. Procedure for Indemnification
      If any third party claim is commenced against a Party entitled to indemnification under this Article, the indemnitee will provide notice of the claim and copies of all related documentation to the indemnitor. Such notice and documentation will be provided as promptly as possible. The indemnitee will cooperate, at the cost of the indemnitor, in all reasonable respects with the indemnitor and its attorneys in the investigation, trial and defense of such claim and any appeal. The indemnitee may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal. In such case, the indemnitor will cooperate with the indemnitee’s attorneys.
   4. Settlement
      An indemnitor will have no liability with respect to any settlement reached without its prior written consent. Settlements of indemnified claims will be subject to the indemnitee’s approval, which will not be unreasonably withheld or delayed; provided, however, that such consent may be given or withheld in the indemnitee’s sole discretion to the extent the settlement admits liability, stipulates to any declaratory or equitable remedy (including monetary), or affects the indemnitee’s intellectual property or Confidential Information.
9. Limitation of Liability
   1. Limitation of Liability.
      NOTWITHSTANDING ANYTHING TO THE CONTRARY AGREED BY THE PARTIES IN A AN EXISTING OR FUTURE AGREEMENT, PURCHASE ORDER OR STATEMENT OF WORK, EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN, ANY BREACHES OF SECTION 2.5 (PROHIBITED USES) OR SECTION 6.1 (FEES), IN NO EVENT SHALL EITHER PARTY (OR IN THE CASE OF ADAMS & KNIGHT, ITS EMPLOYEES, AFFILIATES, AGENTS, CONSULTANTS, THIRD PARTY VENDORS, SERVICE PROVIDERS OR THE LIKE) BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO ADAMS & KNIGHT HEREUNDER WITH RESPECT TO BRANDING CENTRAL THAT GAVE RISE TO THE CLAIM DURING THE TWELVE­MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
10. Term and Termination
    1. Term.
       These Terms shall commence on the date that these Terms is accepted and shall continue in effect unless terminated earlier as permitted in Section 10.2.
    2. Termination.
       These Terms may be earlier terminated by either party, in whole or in part, (a) if the other party materially breaches a provision of these Terms and fails to cure such breach within 30 days (5 days in the case of non­payment) after receiving written notice of such breach from the non­breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
    3. Effects of Termination.
       Upon any expiration or termination of these Terms, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and remedies for breach of these Terms shall survive, (b) Adams & Knight may, but shall not be obligated to, delete archived Customer Data and (c) the provisions of Sections 4 (Proprietary Rights), 5 (Confidentiality), 6 (Payments) (only with respect to amounts incurred prior to the effective date of termination), 7.2 (Disclaimers), 8 (Limitation of Liability), 11 (General Provisions) and this Section 10.3 (Effects of Termination) shall survive.
11. General Provisions
    1. Entire Agreement.
       These Terms, together with Adams & Knight’s Privacy Policy, Terms of Use and any applicable Statements of Work, constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of these Terms. In the event of any conflict or inconsistency between the Terms, the terms and conditions in the Statement of Work will prevail and be controlling, and the terms and conditions in the Terms will prevail and be controlling over terms set forth in Customer’s purchase order (or other similar document). Customer’s purchase order is only effective as its unqualified commitment to access and pay for Branding Central upon the terms (and only the terms) set forth herein. No waiver, consent or, except as expressly provided herein, modification of these Terms shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under these Terms at any time for any period will not be construed as a waiver of such rights. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. If these Terms is required to be registered with any governmental authority, Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
    2. Governing Law.
       These Terms shall be governed by and construed in accordance with the laws of the State of Connecticut, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to these Terms. The sole jurisdiction and venue for actions related to these Terms will be the state or federal courts located in Adams & Knight, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret these Terms, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
    3. Remedies.
       Except as specifically provided otherwise, each right and remedy in these Terms is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5, the non­breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non­breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
    4. Notices.
       Any notice or communication hereunder shall be in writing and either personally delivered or sent recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the service agreement, purchase order or Statement of Work, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
    5. Assignment.
       You may not assign or transfer these Terms and the rights and obligations hereunder, in whole or in part, without Adams & Knight’s written consent. Any attempted transfer in violation hereof will be void and of no effect. These Terms shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
    6. Independent Contractors.
       The parties shall be independent contractors under these Terms, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
    7. Publicity.
       Neither party will make public announcements or issue press releases relating to these Terms or the terms hereof without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.

Last updated: October 20, 2017