These Benefeature Terms of Service ("Agreement") govern access to and use of the Service (as defined below) provided by Marketshare LLC, a Maine limited liability company d/b/a Benefeature ("Marketshare"), having its principal place of business at 8 Spruce Lane, Cumberland Foreside, Maine 04110. The organization or individual that accesses or uses the Service, or that executes an Order Form referencing this Agreement, is referred to herein as "Subscriber."
By creating an account, accessing or using the Service, or executing an Order Form that references this Agreement, Subscriber agrees to be bound by this Agreement. If Subscriber does not agree to these terms, Subscriber must not access or use the Service.
1.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where "control" means the direct or indirect ownership of at least fifty percent (50%) of the voting securities or equivalent ownership interest.
1.2 "Authorized User" means an individual employee of Subscriber who is assigned a unique user account and authorized to access the Service under this Agreement and the applicable Order Form.
1.3 "Confidential Information" has the meaning set forth in Section 8.
1.4 "Data" means all information, analytics, statistics, reports, and other content made available through the Service, including analytics derived from Department of Labor Form 5500 filings and other data sources.
1.5 "Marketshare Property" means the Service, the Platform, all software, algorithms, statistical models, compiled datasets, analytics, methods, processes, know-how, techniques, documentation, and any other intellectual property rights used, originated, or developed by Marketshare, including all updates, modifications, enhancements, and derivative works thereof.
1.6 "Order Form" means any ordering document, invoice, or online purchase flow executed by Subscriber that references this Agreement and specifies the Subscription Plan, Usage-Based Services (if any), fees, number of Authorized Users, and Subscription Term.
1.7 "Platform" means the Benefeature web-based application and all related interfaces, tools, and functionality provided by Marketshare.
1.8 "Service" means the Platform, the Data, and all related services made available by Marketshare to Subscriber under this Agreement, as specified in the applicable Order Form.
1.9 "Subscriber" means the organization or individual that accesses or uses the Service, or that executes an Order Form or Supplemental Agreement referencing this Agreement.
1.10 "Subscription Plan" means the specific tier of Service subscribed to by Subscriber (e.g., Benefeature Pro), as identified in the applicable Order Form. Different Subscription Plans may include different feature sets, Usage Limits, and pricing. Additional Subscription Plans may be offered by Marketshare and will be governed by this Agreement.
1.11 "Subscription Term" means the period during which Subscriber is authorized to access the Service, as specified in the applicable Order Form and subject to Section 7.
1.12 "Supplemental Agreement" means any separately executed agreement between the parties that expressly references or supplements this Agreement, such as an Enterprise Access Agreement, Master Service Agreement, or similar contract.
1.13 "Usage-Based Services" means features or services billed on a consumption or metered basis, including but not limited to API access, AI-generated reports and analyses, data exports, and advanced queries, as specified in the applicable Order Form or published rate schedule.
1.14 "Usage Limits" means any quantitative thresholds associated with a Subscription Plan or Usage-Based Services, such as the number of Authorized Users, API calls, report generations, or data exports included per billing period, as specified in the applicable Order Form.
2.1 Service Overview. Marketshare compiles, analyzes, and models data and market statistics from various sources to provide Subscriber with proprietary analytics, competitive intelligence, and market insight through the Platform.
2.2 Data Sources. The Service incorporates data derived from publicly available Department of Labor Form 5500 filings and other data sources. While certain underlying source data is publicly available as United States government data in the public domain, the compiled analytics, statistical models, data structures, algorithms, and presentation of such data through the Platform constitute proprietary Marketshare Property.
2.3 Service Evolution. Marketshare may update, modify, or enhance the Service from time to time at its sole discretion, including adding or removing features, data sources, or functionality. Marketshare will use commercially reasonable efforts to notify Subscriber of material changes to the Service.
3.1 License Grant. Subject to the terms of this Agreement, Marketshare grants Subscriber a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Service during the Subscription Term solely for Subscriber's internal business purposes.
3.2 Scope of License. The scope of the license is determined by the Subscription Plan and any Usage-Based Services identified in the applicable Order Form. Different Subscription Plans may include different feature sets, Usage Limits, and Usage-Based Service allocations. The Service is delivered via the cloud and no right to local installation, download, or copying of the underlying software is granted.
3.3 Usage-Based Services. Usage-Based Services, if applicable, are licensed as consumed and are subject to the rates and limits specified in the applicable Order Form or published rate schedule.
3.4 Restrictions on Access. Access to the Service is permitted only for Authorized Users within Subscriber's organization. Subscriber may not sublicense, redistribute, or otherwise provide access to the Service or any Data to any third party, including consultants, partners, or affiliates, without the prior written consent of Marketshare.
4.1 Account Assignment. Each subscription includes the number of Authorized User accounts specified in the applicable Order Form. Each account must be assigned to a single employee of Subscriber and associated with a unique email address. Accounts may not be shared between individuals.
4.2 Credential Security. Subscriber is responsible for safeguarding all login credentials associated with its Authorized User accounts. Subscriber shall ensure that each Authorized User keeps their credentials confidential and does not permit any other person to access the Service using their account.
4.3 Notification of Unauthorized Access. Subscriber shall notify Marketshare promptly in writing upon learning of any unauthorized use of any login, password, or account, or any other known or suspected breach of security. Subscriber is responsible for all activity occurring under its accounts until such time as Subscriber notifies Marketshare and Marketshare has had a reasonable opportunity to act on such notification.
4.4 Account Reassignment. Subscriber may request reassignment of an Authorized User account from one employee to another by contacting Marketshare. Reassignment does not increase the total number of Authorized Users.
4.5 Third-Party Access. Access may not be extended to consultants, partners, affiliates, or other third parties without prior written consent from Marketshare. Any approved third-party access is subject to this Agreement, and Subscriber remains responsible for such third party's compliance with all terms herein.
4.6 Monitoring. Subscriber acknowledges that Marketshare may monitor usage of the Service, including login activity, IP addresses, and consumption of Usage-Based Services, to ensure compliance with this Agreement and to maintain the security and integrity of the Platform.
5.1 General Obligations. Subscriber shall use the Service only for lawful purposes and in accordance with this Agreement and all applicable local, state, federal, and international laws, rules, and regulations.
5.2 Antitrust Compliance. Subscriber agrees that the Service and any information derived from it shall not be used to coordinate, influence, or control market pricing, product terms, or competitive market behavior in violation of applicable antitrust or competition laws.
5.3 Prohibited Activities. Except as expressly permitted in this Agreement, Subscriber shall not, and shall not permit any Authorized User or third party to:
5.4 Compliance. Subscriber is responsible for all acts and omissions of its Authorized Users in connection with the Service. Any breach of this Section 5 by an Authorized User shall be deemed a breach by Subscriber.
6.1 Subscription Fees. Subscriber agrees to pay the subscription fees specified in the applicable Order Form for the Subscription Plan and number of Authorized Users selected. Subscription fees are invoiced annually in advance unless otherwise specified in the Order Form.
6.2 Usage-Based Fees. If the applicable Order Form includes Usage-Based Services, such services are billed on a consumption basis at the rates specified in the Order Form or Marketshare's then-current published rate schedule. Usage-Based Services include but are not limited to:
Usage is tracked by Marketshare's metering systems, which constitute the authoritative record for billing purposes. Subscriber may monitor its usage through the Platform dashboard, if available, or by contacting Marketshare. Usage-Based Fees are invoiced monthly in arrears unless otherwise specified in the Order Form.
6.3 Overages. If Subscriber exceeds the Usage Limits included in its Subscription Plan, excess usage will be billed at the overage rates specified in the Order Form or published rate schedule. Marketshare will use commercially reasonable efforts to notify Subscriber when usage approaches or exceeds included limits, but Subscriber is solely responsible for monitoring and managing its own consumption.
6.4 Payment Terms. Subscription fees are due and payable within fourteen (14) days of the invoice date. Usage-Based Fees are due and payable within thirty (30) days of the invoice date. All fees are stated and payable in United States dollars unless otherwise specified in the Order Form.
6.5 Late Payment. If any undisputed payment is not received by Marketshare by the applicable due date, such overdue amounts may accrue late interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by applicable law, whichever is lower, from the date such payment was due until paid in full. Marketshare may suspend Subscriber's access to the Service if any payment remains overdue for more than fifteen (15) days after written notice of non-payment. Subscriber shall be responsible for all reasonable costs of collection, including attorneys' fees, if collection efforts become necessary.
6.6 Taxes. All fees are exclusive of taxes. Subscriber is responsible for all sales, use, value-added, excise, and other taxes, levies, and duties imposed by any taxing authority on the transactions contemplated by this Agreement, excluding taxes based on Marketshare's net income. If Marketshare is required by law to collect and remit any such taxes, the applicable amounts will be invoiced to and paid by Subscriber. If Subscriber is exempt from any applicable tax, Subscriber shall provide Marketshare with a valid tax exemption certificate prior to invoicing.
6.7 Price Changes. Subscription renewal pricing will be communicated to Subscriber in writing at least sixty (60) days prior to the commencement of the applicable Renewal Term. Usage-Based Service rates may be updated by Marketshare with at least thirty (30) days' written notice, effective at the start of the next billing period. No mid-term increases to subscription fees shall be made without mutual written agreement.
6.8 Order Forms and Supplemental Agreements. Each Order Form executed by the parties is incorporated into and governed by this Agreement. In the event of a conflict between this Agreement and an Order Form, this Agreement shall control unless the Order Form expressly states that it supersedes a specific provision of this Agreement. The order of precedence among the parties' agreements, from highest to lowest, is: (1) any Supplemental Agreement; (2) the applicable Order Form; and (3) this Agreement. In the event of a conflict, the higher-precedence document shall control to the extent of the conflict.
7.1 Subscription Term. The initial Subscription Term is specified in the applicable Order Form and commences on the subscription start date set forth therein. Unless otherwise specified in the Order Form, the initial Subscription Term is twelve (12) months.
7.2 Renewal. The Subscription Term will automatically renew for successive twelve (12)-month periods (each, a "Renewal Term") unless either party provides written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current Subscription Term or Renewal Term.
7.3 Voluntary Termination. Either party may terminate this Agreement for any reason or no reason by providing written notice to the other party. Such termination shall be effective at the end of the then-current Subscription Term or billing period, as applicable. Subscriber shall remain responsible for all fees through the end of such period, and no refunds or credits shall be issued for prepaid fees.
7.4 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice specifying the breach. If the breach is not capable of cure, the non-breaching party may terminate this Agreement immediately upon written notice.
7.5 Termination for Non-Payment. Without limiting Section 7.4, Marketshare may terminate this Agreement and any outstanding Order Form(s) if Subscriber fails to pay any undisputed fees within thirty (30) days after the applicable due date and after receiving written notice of such non-payment.
7.6 Suspension. Marketshare may immediately suspend Subscriber's access to all or part of the Service, without liability, if Marketshare reasonably determines that: (a) Subscriber has materially breached this Agreement; (b) Subscriber's use of the Service poses a security risk to the Service or any third party; or (c) suspension is required to comply with applicable law. Marketshare will use commercially reasonable efforts to notify Subscriber prior to or promptly following any suspension and to restore access once the grounds for suspension have been resolved.
7.7 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason:
7.8 Survival. Sections 1, 5, 6 (with respect to accrued obligations), 8, 9, 10, 11, 12, 13, 14, and 15, and any other provisions that by their nature are intended to survive, shall survive the expiration or termination of this Agreement.
8.1 Definition. "Confidential Information" means all non-public information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), whether orally, in writing, or by any other means, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation: (a) with respect to Marketshare, the Service, all Data, analytics, platform functionality, pricing, algorithms, source code, business plans, and customer information; and (b) with respect to Subscriber, Subscriber's business data, usage patterns, and any information provided to Marketshare in connection with the Service.
8.2 Exclusions. Confidential Information does not include information that: (a) was already known to the Receiving Party prior to disclosure by the Disclosing Party, without obligation of confidentiality; (b) is or becomes publicly available through no fault or breach by the Receiving Party; (c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; or (d) is rightfully received by the Receiving Party from a third party without restriction on disclosure.
8.3 Obligations. The Receiving Party shall: (a) maintain the confidentiality of all Confidential Information using at least the same degree of care it uses to protect its own confidential information of like kind, but in no event less than reasonable care; (b) not disclose Confidential Information to any third party except as permitted by this Agreement; and (c) use Confidential Information only to the extent necessary to exercise its rights or perform its obligations under this Agreement. The Receiving Party may disclose Confidential Information to its employees and contractors who have a need to know and who are bound by confidentiality obligations at least as protective as those in this Agreement.
8.4 Compelled Disclosure. If the Receiving Party is compelled by law, regulation, or legal process to disclose Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice (to the extent legally permitted) so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall disclose only that portion of the Confidential Information that is legally required to be disclosed.
8.5 Marketing Use. Notwithstanding the foregoing, either party may acknowledge the existence of the business relationship for marketing purposes, including reasonable use of the other party's name and logo, unless the other party provides written notice withdrawing such permission.
8.6 Equitable Relief. Both parties acknowledge that unauthorized disclosure of Confidential Information may cause irreparable harm for which monetary damages would be an inadequate remedy. Accordingly, either party may seek injunctive or other equitable relief in addition to any other remedies available at law or in equity.
9.1 Compliance with Privacy Laws. Each party shall comply with all applicable data privacy and data protection laws and regulations in connection with the performance of its obligations under this Agreement, including without limitation the California Consumer Privacy Act as amended by the California Privacy Rights Act ("CCPA/CPRA"), the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, and other state privacy laws as enacted and in effect from time to time (collectively, "Applicable Privacy Laws").
9.2 Data Processing Roles. Marketshare is the data controller with respect to Data derived from publicly available sources, including Form 5500 filings. Subscriber is the data controller with respect to any personal data that Subscriber provides to Marketshare in connection with the Service ("Subscriber Personal Data"). To the extent Marketshare processes Subscriber Personal Data on behalf of Subscriber, Marketshare acts as a data processor (or "service provider" as defined under the CCPA/CPRA).
9.3 Use of Subscriber Personal Data. Marketshare shall not use Subscriber Personal Data for any purpose other than to provide the Service and to perform its obligations under this Agreement. Marketshare shall not sell, share (as defined under Applicable Privacy Laws), or otherwise make available Subscriber Personal Data to third parties except as necessary to provide the Service or as required by applicable law.
9.4 Security Measures. Marketshare shall maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of the Service and any Subscriber Personal Data. These measures shall be appropriate to the nature and sensitivity of the information and consistent with industry standards for SaaS platforms.
9.5 Breach Notification. In the event Marketshare becomes aware of a security breach affecting Subscriber Personal Data, Marketshare shall notify Subscriber in writing within seventy-two (72) hours of becoming aware of the breach and shall cooperate with Subscriber in investigating and remediating the breach, including providing information reasonably necessary for Subscriber to comply with its own notification obligations under Applicable Privacy Laws.
9.6 Data Processing Addendum. The parties may enter into a separate Data Processing Addendum ("DPA") to address additional data processing requirements. In the event of a conflict between this Section 9 and any executed DPA, the DPA shall control.
9.7 Privacy Policy. Marketshare's collection and use of information in connection with the Service is further described in the Benefeature Privacy Policy, available at benefeature.com/privacy-policy (as updated from time to time).
10.1 Marketshare Ownership. Marketshare retains all right, title, and interest in and to the Service and all Marketshare Property, including all intellectual property rights therein. Nothing in this Agreement shall be construed to transfer, assign, or grant to Subscriber any ownership interest in the Service, the Platform, the Data, or any Marketshare Property. No Marketshare Property shall be deemed a "work made for hire" under applicable copyright law.
10.2 Proprietary Compilations. While certain underlying data incorporated into the Service (including data from Department of Labor Form 5500 filings) is publicly available and in the public domain, the compiled analytics, statistical models, data structures, algorithms, methodologies, and presentation of such data through the Service constitute original works of authorship and proprietary Marketshare Property, protectable under applicable intellectual property laws.
10.3 Subscriber Data. Subscriber retains all right, title, and interest in any data that Subscriber independently provides to Marketshare in connection with the Service. Subscriber grants Marketshare a limited, non-exclusive right to use such data solely to provide the Service and to perform its obligations under this Agreement.
10.4 Feedback. If Subscriber provides any suggestions, ideas, enhancement requests, recommendations, or other feedback regarding the Service ("Feedback"), Marketshare may freely use, incorporate, and commercialize such Feedback without restriction or obligation to Subscriber.
10.5 Reservation of Rights. Except for the limited license expressly granted in Section 3, no rights in or to any Marketshare Property are granted to Subscriber, whether by implication, estoppel, or otherwise.
11.1 Limited Warranty. Marketshare warrants that it will use commercially reasonable efforts to make the Service available in accordance with the applicable Order Form and to maintain the security and integrity of the Platform.
11.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11.1, THE SERVICE, THE PLATFORM, AND ALL DATA ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARKETSHARE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, NON-INFRINGEMENT, OR QUIET ENJOYMENT.
11.3 No Guarantee of Accuracy. SUBSCRIBER ACKNOWLEDGES THAT THE DATA AND ANALYTICS PROVIDED THROUGH THE SERVICE ARE DERIVED IN PART FROM THIRD-PARTY SOURCES, INCLUDING GOVERNMENT FILINGS THAT MAY CONTAIN ERRORS OR OMISSIONS. MARKETSHARE DOES NOT WARRANT OR REPRESENT THAT ANY DATA OR ANALYTICS ARE ACCURATE, COMPLETE, CURRENT, OR ERROR-FREE. SUBSCRIBER IS SOLELY RESPONSIBLE FOR INDEPENDENTLY VERIFYING ANY DATA OR ANALYTICS BEFORE RELYING UPON THEM FOR BUSINESS DECISIONS.
11.4 Not Professional Advice. THE SERVICE AND THE DATA DO NOT CONSTITUTE AND SHALL NOT BE CONSTRUED AS PROVIDING TAX, LEGAL, ACTUARIAL, INVESTMENT, INSURANCE, OR ACCOUNTING ADVICE. NO PORTION OF THE SERVICE CONSTITUTES A RECOMMENDATION OR OPINION TO BUY, SELL, OR TRANSACT IN ANY PRODUCT OR SERVICE. SUBSCRIBER ACCEPTS SOLE RESPONSIBILITY FOR ITS USE OF THE SERVICE AND ANY DECISIONS MADE IN RELIANCE ON THE DATA.
11.5 Service Availability. MARKETSHARE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR AVAILABLE AT ALL TIMES. THE SERVICE MAY BE SUBJECT TO INTERRUPTIONS FOR MAINTENANCE, UPDATES, OR CIRCUMSTANCES BEYOND MARKETSHARE'S REASONABLE CONTROL. Marketshare will use commercially reasonable efforts to provide advance notice of planned downtime.
11.6 Third-Party Data Sources. Marketshare makes no representation or warranty that any third-party data source incorporated into the Service will continue to be available throughout the Subscription Term. If a third-party data source is discontinued or becomes unavailable, Marketshare may, at its sole discretion: (a) procure a substitute data source of substantially similar scope; (b) modify the Service to account for the unavailability; or (c) adjust the affected Service and provide a pro-rata refund of prepaid fees attributable to the discontinued data.
12.1 Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, BUSINESS OPPORTUNITIES, OR GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 Aggregate Liability Cap. EXCEPT FOR THE OBLIGATIONS SET FORTH IN SECTION 12.3, EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY SUBSCRIBER TO MARKETSHARE DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
12.3 Carve-Outs. The limitations set forth in Sections 12.1 and 12.2 shall not apply to: (a) either party's breach of Section 8 (Confidentiality); (b) either party's indemnification obligations under Section 13; (c) Subscriber's payment obligations under Section 6; (d) either party's willful misconduct or gross negligence; or (e) liability that cannot be limited under applicable law.
12.4 Duty to Mitigate. Nothing in this Section 12 shall relieve either party of its duty to mitigate damages.
12.5 Basis of the Bargain. The parties acknowledge that the limitations of liability in this Section 12 are an essential element of the bargain between the parties and that the fees charged under this Agreement reflect this allocation of risk.
13.1 Indemnification by Subscriber. Subscriber shall indemnify, defend, and hold harmless Marketshare and its officers, directors, employees, agents, and Affiliates from and against any and all third-party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or in connection with: (a) Subscriber's or any Authorized User's breach of this Agreement; (b) Subscriber's or any Authorized User's misuse of the Service or Data; (c) Subscriber's violation of applicable law in connection with its use of the Service; or (d) any third-party claim arising from Subscriber's use of Data obtained through the Service.
13.2 Indemnification by Marketshare. Marketshare shall indemnify, defend, and hold harmless Subscriber and its officers, directors, employees, agents, and Affiliates from and against any and all third-party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of a third-party claim that the Service, as provided by Marketshare and used in accordance with this Agreement, infringes any valid United States patent, copyright, or trademark. If such a claim is made or is reasonably likely to be made, Marketshare may, at its sole option and expense: (a) procure for Subscriber the right to continue using the Service; (b) modify the Service to make it non-infringing while maintaining substantially equivalent functionality; or (c) terminate this Agreement and refund to Subscriber any prepaid fees for the unused portion of the then-current Subscription Term. This Section 13.2 states Marketshare's sole liability and Subscriber's exclusive remedy with respect to any claim of intellectual property infringement.
13.3 Indemnification Exclusions. Marketshare shall have no indemnification obligation under Section 13.2 to the extent that a claim arises from: (a) use of the Service in combination with products, services, or data not provided by Marketshare; (b) modification of the Service by anyone other than Marketshare; (c) use of the Service in a manner not authorized by this Agreement; or (d) Subscriber's continued use of the Service after Marketshare has provided a non-infringing alternative.
13.4 Indemnification Procedure. The party seeking indemnification (the "Indemnified Party") shall: (a) promptly notify the indemnifying party (the "Indemnifying Party") in writing of the claim; (b) grant the Indemnifying Party sole control of the defense and settlement of the claim; and (c) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense. The Indemnified Party may participate in the defense at its own expense. The Indemnifying Party shall not settle any claim in a manner that imposes obligations on the Indemnified Party or admits fault on behalf of the Indemnified Party without the Indemnified Party's prior written consent. Failure of the Indemnified Party to provide prompt notice shall not relieve the Indemnifying Party of its obligations except to the extent it is actually prejudiced by such failure.
14.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Maine, without regard to its conflict of laws principles.
14.2 Jurisdiction. Any dispute, action, or proceeding arising out of or in connection with this Agreement shall be brought exclusively in the state or federal courts located in the State of Maine. Each party unconditionally and irrevocably consents to the exclusive jurisdiction of such courts and waives any objection to venue therein.
14.3 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY CERTIFIES THAT IT HAS REVIEWED THIS WAIVER AND KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
14.4 Statute of Limitations. Neither party may bring any claim arising out of or related to this Agreement more than one (1) year after the cause of action accrues.
14.5 Equitable Relief. Nothing in this Section 14 shall prevent either party from seeking injunctive or other equitable relief in any court of competent jurisdiction with respect to a breach or threatened breach of Section 5 (Acceptable Use and Restrictions), Section 8 (Confidentiality), or Section 10 (Intellectual Property and Ownership).
14.6 Continued Performance. Both parties agree to continue performing their respective obligations under this Agreement while any dispute is being resolved, to the extent such obligations are not the subject of the dispute.
15.1 Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement (other than payment obligations) to the extent such failure or delay results from circumstances beyond the party's reasonable control, including but not limited to acts of God, natural disasters, pandemics or epidemics, war, terrorism, riots, government actions or orders, labor disputes, power failures, internet or telecommunications failures, cyberattacks, or failures of third-party service providers. The affected party shall provide prompt written notice to the other party and shall use commercially reasonable efforts to mitigate the effects of and resume performance as soon as practicable.
15.2 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be modified to the minimum extent necessary to make it enforceable, or if modification is not possible, shall be severed from this Agreement. The validity and enforceability of the remaining provisions shall not be affected.
15.3 Waiver. No failure or delay by either party in exercising any right or remedy under this Agreement shall operate as a waiver thereof. No waiver shall be effective unless made in writing and signed by the waiving party. A waiver of any breach shall not constitute a waiver of any subsequent breach of the same or any other provision.
15.4 Assignment. Neither party may assign or transfer this Agreement or any rights or obligations hereunder without the prior written consent of the other party, except that Marketshare may assign this Agreement without consent: (a) to an Affiliate; or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this Section shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
15.5 Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered: (a) when delivered personally; (b) when sent by email to the address on file for the receiving party, provided the sender does not receive a delivery failure notification; or (c) one (1) business day after deposit with a nationally recognized overnight courier service. Notices to Marketshare shall be sent to the address set forth in the preamble of this Agreement (or such other address as Marketshare may designate in writing). Notices to Subscriber shall be sent to the address or email specified in the applicable Order Form or, for Subscribers without an Order Form, to the email address associated with Subscriber's account (or such other address as Subscriber may designate in writing).
15.6 Amendments. Marketshare may update or modify the terms of this Agreement from time to time. For non-material changes, Marketshare will provide at least thirty (30) days' written notice, and continued use of the Service after the effective date of such changes constitutes acceptance. For material changes that substantively alter Subscriber's rights or obligations, Marketshare will provide at least sixty (60) days' written notice, and such changes will not take effect for existing Subscribers until the commencement of the next Renewal Term unless Subscriber provides affirmative written consent. Notwithstanding the foregoing, changes required by applicable law or regulation may take effect immediately upon notice.
15.7 Independent Contractor. The relationship between the parties is that of independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties.
15.8 Entire Agreement. This Agreement, together with all Order Forms, any executed DPA, and any Supplemental Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, except to the extent a Supplemental Agreement expressly provides otherwise. No terms or conditions contained in any Subscriber purchase order, acknowledgment, or other business form shall modify or supplement this Agreement, and any such terms or conditions are hereby rejected.
15.9 Construction. This Agreement shall not be construed in favor of or against either party by reason of authorship. Section headings are for convenience only and shall not affect the interpretation of this Agreement.
15.10 Electronic Acceptance and Execution. Subscriber's acceptance of this Agreement by creating an account, clicking an acceptance button, checking an acceptance box, or accessing or using the Service shall have the same legal force and effect as a manual signature. Order Forms may be executed electronically, including via electronic signature, and such execution shall be binding.
By accessing or using the Service, or by executing an Order Form that references this Agreement, Subscriber acknowledges that it has read, understood, and agrees to be bound by all terms and conditions of this Agreement.
