4.2 Governing Law.For all purposes, this Agreement will be governed exclusively by and construed, and enforced in accordance with the laws prevailing in the UAE as applied in the Dubai International Financial Centre (DIFC) in the Emirate of Dubai.4.3 Assignment.Neither this Agreement nor any of the rights, interests, or obligations hereunder shall be assigned by any of the parties hereto, in whole or in part, without the prior written consent of the other parties, and any attempt to make any such assignment without such consent shall be null and void, except an assignment, in the case of a business combination where such party is not the surviving entity, or a sale of substantially all of its assets, to the entity which is the survivor of such business combination or the purchaser in such sale. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.4.4 Notices. All notices must be in writing (email is sufficient) and if to Ink Worldwide DMCC to the following email address: legal@Inkww.com and if to Company to its representative specified herein.4.5 Publicity. Neither party may issue a press release without the other’s written approval (email is sufficient).4.6 Independent Contractors.The status of a party under this Agreement shall be that of an independent contractor. Nothing contained in this Agreement shall be construed as creating a partnership, joint venture, or agency relationship between the parties or, except as otherwise expressly provided in this Agreement, as granting either party the authority to bind or contract any obligation in the name of or on the account of the other party or to make any statements, representations, warranties, or commitments on behalf of the other party. All persons employed by a party shall be employees of such party and not of the other party and all costs and obligations incurred by reason of any such employment shall be for the account and expense of such party.4.7 Force Majeure.In no event shall either party be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, or third party network or communications services or infrastructure.4.8 Entire Agreement, Severability, and Amendment. This Agreement (including any Exhibits, Schedules, or Amendments) embodies the entire agreement and understanding of the parties hereto in respect of the subject matter of this Agreement and supersedes and replaces all prior agreements, understandings, and commitments, oral or written, with respect to such subject matter. If any term, provision, covenant, or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The parties shall endeavor in good faith negotiations to replace the invalid, void, or unenforceable provisions with valid provisions the effect of which comes as close as possible to that of the invalid, void, or unenforceable provisions. This Agreement may be amended only by a written document signed by both parties to this Agreement.
REPRESENTATIONS, WARRANTIES, AND COVENANTS
DATA USAGE AND PRIVACY
7.1Intellectual Property Rights.All ownership rights, title, and interest in and to the Services and Materials, including all intellectual property rights therein, as such may be modified, upgraded, or enhanced from time to time will remain and belong exclusively to Ink Worldwide DMCC. Ink Worldwide DMCC reserves all rights not expressly granted to Company herein. Company shall retain all ownership rights, title, and interest in and to the Properties, including all intellectual property rights therein, as such may be modified, upgraded or enhanced from time to time. If Company elects to provide any observations, suggestions, comments, improvements, ideas or other feedback, in writing, verbally or otherwise, to Ink Worldwide DMCC (collectively, “Feedback”) relating to the Services or Materials, Company hereby grants Ink Worldwide DMCC the right to freely use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.7.2 Ink Worldwide DMCC and Company Marks.Company hereby grants Ink Worldwide DMCC the non-exclusive, worldwide right and license to use, reproduce, distribute and display Company’s and its Properties’ trademarks, names, logos, product descriptions, videos, and images (“Company Marks”), in connection with the Company’s use of the Services, including (i) in sales collateral for presentation to prospective buyers; (ii) reporting the inclusion of the Company and its Properties as part of Ink Worldwide DMCC’s advertising network; (iii) identifying the Company as a publishing partner on Ink Worldwide DMCC’s website and other marketing materials; and (iv) on Ink Worldwide DMCC hosted web pages used as part of the Services.
8.1 Unless otherwise expressly provided for in this Agreement, both parties shall treat any non-public information provided by or obtained from the other, that might include, but not be limited to that Party’s: (1) business plans, methods, and practices; (2) personnel, customers, and partners; (3) inventions, processes, know-how, trade secrets, and other proprietary rights; or (4) specifications, tools, computer programs, technical or other related information in any form (collectively, “Confidential Information”), as proprietary or confidential. Confidential Information includes information disclosed that is designated as “confidential” or that a reasonable person knows or reasonably should understand to be confidential. The receiving Party (“Recipient”) shall (a) never use such Confidential Information for any purpose other than its performance under this Agreement and, (b) not disclose any such Confidential Information to any third party during the term of this Agreement or for a period of five (5) years thereafter, except for information which (i) at the time of disclosure, was published, known publicly or otherwise in the public domain; (ii) after disclosure, is published, becomes known publicly or otherwise becomes part of the public domain through no fault of the Recipient; (iii) prior to the time of disclosure, is known to the Recipient as evidenced by its written records and is not then subject to an obligation of confidentiality to any third party; and (iv) after disclosure, is made available to the Recipient in good faith by a third party under no obligation of confidentiality and without restriction on its further disclosure by the Recipient. Notwithstanding the preceding sentence, either party may only disclose Confidential Information of the other and this Agreement to its officers, directors, employees, agents, legal representatives, advisers, consultants, and contractors who have executed appropriate written agreements with the Recipient sufficient to enable Recipient to enforce all of the provisions of this Agreement to the extent such disclosure is on a need-to-know basis and is reasonably necessary to achieve the purposes of this Agreement; or as required by law or to comply with applicable governmental regulations or court order; provided that if a party is required to make such disclosure of the other party’s Confidential Information, other than pursuant to a confidentiality agreement, it will give reasonable advance notice to the other party of such disclosure and, will use its reasonable best efforts to secure confidential treatment of such information in consultation with the other party prior to its disclosure and disclose only the minimum necessary to comply with such requirements.
LIMITATIONS OF LIABILITY; DISCLAIMER; INDEMNIFICATION
9.1 Limitations of Liability9.1.1 NEITHER PARTY WILL BE LIABLE, UNDER OR IN CONNECTION WITH THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, OR LOSS OF CLIENTS, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT, INDEMNIFICATION OR OTHER THEORIES OF RECOVERY, EVEN IF ANY SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.9.1.2 EXCLUDING DAMAGES THAT RESULT FROM A COMPANY’S BREACH OF SECTION 5 (COMPANY REPRESENTATIONS, WARRANTIES, AND COVENANTS), A PARTY’S BREACH OF SECTION 8 (CONFIDENTIALITY), OR A PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT, OR FRAUDULENT ACTIONS, IN NO EVENT WILL Ink Worldwide DMCC’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT, INDEMNIFICATION OR OTHER THEORIES OF RECOVERY, EXCEED THE COMPANY REVENUE SHARE RELATING TO THE PRIOR THREE (3) MONTH PERIOD.9.2 Disclaimers.EXCEPT AS EXPLICITLY PROVIDED HEREIN, Ink Worldwide DMCC MAKES NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND REGARDING THE SERVICES (WHICH, FOR THE AVOIDANCE OF DOUBT, INCLUDE THE MATERIALS), AND EXCEPT AS EXPLICITLY PROVIDED HEREIN, Ink Worldwide DMCC HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION, QUALITY, ACCESSIBILITY, NON-INFRINGEMENT, OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE. FOR GREATER CERTAINTY, Ink Worldwide DMCC DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL OPERATE SECURELY OR WITHOUT INTERRUPTION; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE COMPANY’S USE OF THE SERVICES.9.3 Indemnification.9.3.1 Subject to Section 9.1 (Limitations of Liability), Company shall indemnify and hold harmless Ink Worldwide DMCC, its affiliates, and their respective directors, officers, employees, agents, representatives, shareholders, successors and permitted assigns, as well as its partners, against any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred or sustained by any of them based upon or relating to third-party claims, actions, suits or proceedings related to or arising from: (i) the Properties; (ii) Company’s unauthorized use of the Services and/or Materials; (iii) any actual or alleged breach by Company of any term, condition, representation, or warranty under this Agreement; (iv) any infringement by Company of any Intellectual Property Rights or other rights of a third party; (v) Company’s negligence, willful misconduct, or fraudulent actions; (vi) an obligation of Ink Worldwide DMCC to withhold, remit, or administer any amount in respect of taxes owing by, on behalf of, or in respect of Company or in respect of any activities carried on by Company.9.3.2 Subject to Section 9.1 (Limitations of Liability), Ink Worldwide DMCC shall indemnify and hold harmless Company, its affiliates, and their respective directors, officers, employees, agents, representatives, shareholders, successors, and permitted assigns against any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred or sustained by any of them based upon or relating to third-party claims, actions, suits or proceedings related to or arising from: (i) any actual or alleged breach by Ink Worldwide DMCC of any term, condition, representation, or warranty under this Agreement; (ii) Ink Worldwide DMCC’s negligence, willful misconduct, or fraudulent actions; or (iii) the infringement by Ink Worldwide DMCC of any Intellectual Property Rights or other rights of a third party. Notwithstanding the foregoing, Ink Worldwide DMCC will have no liability for any claim to the extent it is based on Company’s written specifications or direction (but excluding where the claim results from the method or manner chosen by Ink Worldwide DMCC to implement such specifications or direction), or otherwise arises solely from Company’s unauthorized use of the Services. In the event that the Services or Materials are held to or believed by Ink Worldwide DMCC to infringe, Ink Worldwide DMCC will have the option to: (A) replace or modify such item to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (B) obtain for Company the right to continue using such item; or (C) if both (A) and (B) are not reasonably practicable, terminate this Agreement upon written notice to Company.9.3.3 Any claim for indemnification hereunder shall be subject to the following provisions: (i) the representations, warranties, and covenants of the indemnifying party, and the indemnified party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the indemnified party or by reason of the fact that the indemnified party or any of its representatives knew or should have known that any such representation or warranty is, was, or might be inaccurate; and (ii) the indemnified party shall give the indemnifying party prompt written notice of the discovery of any state of facts or circumstances that the indemnified party has determined could give rise to an indemnification claim under this Section 9. The indemnified party’s failure to provide such notice to the indemnifying party under this Section 9 does not relieve the indemnifying party of any liability that the indemnifying party may have to the indemnified party, but in no event shall the indemnifying party be liable for any losses that result from a delay in providing such notice.