Yield Day, Inc. – Customer Agreement

YIELD DAY CUSTOMER AGREEMENT

This Yield Day U.S. Customer Agreement (the “Agreement“), dated as of the date of the last party to sign below (the “Effective Date”), is entered into between Yield Day, Inc. (“Customer“), and the customer identified on the workorder signature page (“Customer“, and together with Customer, the “Parties“, and each, a “Party“). The Parties agree as follows:

  1. CERTAIN DEFINED TERMS.
    • “Affiliate” of a person or entity means any other person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, this person or entity, where “control” means, regarding any person or entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another person or entity, whether through the ownership or voting securities, by contract, or otherwise.
    • “Customer Site(s)” means Customer’s (or if an agency, its advertiser customers’) owned and operated website(s) designated by Customer to receive the Services.
    • “Documentation” means Yield Day’s standard user guides and manuals relating to the Service as updated and amended from time to time.
    • Yield Day Material” means all documents, data, know-how, methods, processes, software and other inventions, works, technologies and materials, including any and all software, documentation, computer hardware, programs, reports and specifications, client software and deliverables that are proprietary to or licensed by Yield Day and provided or used by Yield Day in connection with performing the Services.
    • “Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with an individual, a device or a household. Personal information includes such information deemed personal information or personal data under applicable law.
    • “Services” means the web application which scores visitors on the customer sites, creates, manages and segments audiences, delivers audiences to or excludes audiences from a customer’s marketing channels, and adds audiences to customer’s advertising campaigns in their marketing accounts.
    • “Territory” means the United States of America.
  2. ACCESS
    • Access to Services. Yield Day makes the Services available to Customer during the Term, in the Territory, for Customer’s internal business purposes in accordance with this Agreement. Customer will place and maintain Yield Day’s tag for the Services on the Customer Websites. During the Term, Customer grants to Yield Day access to Customer’s third party marketing accounts to allow Yield Day to provide the Services and to invoice for the Services.
    • Support. Yield Day shall provide support to Customer in accordance with Exhibit A.
    • Customer grants to Yield Day a worldwide, perpetual, irrevocable, royalty- free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the Services or Yield Day’s business.
    • Customer Responsibilities. Customer shall (a) be responsible for accessing and using the Services made available to it in accordance with this Agreement, (b) be responsible for all acts and omissions of its representatives, including their compliance with this Agreement and the Documentation, (c) be responsible for the accuracy, quality, integrity and legality of any information provided to Yield Day, (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Yield Day promptly of any such unauthorized access or use, and (e) use the Services only in accordance with this Agreement, the Documentation and applicable laws and regulations.
    • Usage Restrictions. Customer shall not: (a) make the Services available to any third party, (b) sell, resell, lease, rent, license, sublicense, distribute, transfer or otherwise make available the Services on a time-sharing, SaaS, service bureau or other similar basis to a third party, (c) use the Services to store or transmit infringing, libelous, unlawful or tortious material or malicious code or to store or transmit material in violation of third party privacy rights, (d) use or access the Services in any way that threatens the integrity, performance, or availability of the Services or any data therein, (e) attempt to gain unauthorized access to the Services, (f) provide Yield Day with access to Personal Information of any visitors of the Customer Websites, (g) remove, modify or obscure any identifier, copyright, trademark or other proprietary rights notice or other notices, instructions, disclaimers or legends with respect to the Services, (h) modify or create derivative works of the Services (or third party software embodied therein), (i) decompile, disassemble, or reverse engineer the Services, in whole or in part or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats, data structures or other aspects of the Services, (j) use the Services in a way that circumvents usage limits, or (k) access, use or copy any portion of the Services in order to build a competitive service or to benchmark with any third party service. Yield Day may restrict or prohibit access to Customer following five (5) business day prior written notice if Yield Day reasonably suspects Customer is breaching its obligations under this Section.
    • Third Party Code. The Services may contain components subject to the terms and conditions of “open source” software licenses (“Open Source Software”) or other third party software. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
  3. FEES AND PAYMENT.
    • Fees and Expenses. Customer shall pay to Yield Day, without offset or deduction, the fees and expenses set forth in Exhibit A. The Parties may mutually agree on fee increases annually on the anniversary of the Effective Date.  Customer acknowledges that Yield Day requires access to Customer’s third party marketing accounts in order to calculate certain fees owed. Accordingly, Customer shall not terminate such access until Customer has paid the final invoice owed under this Agreement.
    • Payment Terms. Unless otherwise provided in Exhibit A or to the extent an invoice is subject to a Dispute, all fees and expenses are due and payable within thirty (30) calendar days after an invoice is issued by Yield Day. Any amounts not paid when due (unless subject to a Dispute) will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less. All fees and expenses paid by Customer under this Agreement are non-refundable. All dollar amounts referred to in this Agreement are in United States Dollars. “Dispute” means a good faith dispute by Customer of certain amounts invoiced under this Agreement as evidenced by a written notice from Customer to Yield Day within fifteen (15) days after receipt of the invoice and reasonable detail of the dispute. Failure to submit a Dispute within such time frame is deemed a waiver of Customer’s right to dispute charges under the applicable invoice. Customer shall pay the portion of the invoice not subject to the Dispute in accordance with this Agreement.
    • Yield Day’s fees do not include any sales, value-added, or services taxes or similar governmental assessments of any nature (collectively “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Yield Day has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Yield Day will invoice Customer and Customer will pay that amount unless Customer provides Yield Day with a valid tax exemption certificate authorized by the appropriate taxing authority.
    • In the event that Customer’s account is more than fifteen (15) days overdue, Yield Day shall have the right, in addition to its other remedies under this Agreement or pursuant to applicable law, to suspend Customer’s use of the Services, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due.
  4. OWNERSHIP
    • Yield Day owns all right, title, and interest, including all intellectual property rights, in and to the Services, Documentation, Yield Day Materials, and Yield Day Confidential Information. All right, title, and interest in and to the foregoing, including all intellectual property rights therein, are and will remain with Yield Day. Yield Day, on behalf of itself and its partners, licensors and vendors, reserves all rights not expressly granted by this Agreement.
    • Except for the limited license granted in this Agreement, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer’s Confidential Information. All right, title, and interest in and to the foregoing, including all intellectual property rights therein, are and will remain with Customer. Customer reserves all rights not expressly granted by this Agreement.
  5. NON-SOLICITATION.
    • During the Term and for a period of twelve (12) months after termination of this Agreement, Customer shall not, directly or indirectly, solicit any employee or consultant of Yield Day to provide services to Customer or any third party.
  6. TERM; TERMINATION
    • The term of this Agreement commences on the Effective Date and continues for the term set forth on Exhibit A, unless and until earlier terminated as provided under this Agreement (the “Initial Term”). This Agreement will automatically renew for successive one (1) year terms unless earlier terminated pursuant to this Agreement or either Party gives the other Party written notice of non-renewal at least 90 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
    • Material Breach. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured 60 days after the non-breaching Party provides the breaching Party with written notice of such breach; provided, that Yield Day may terminate this Agreement, effective on written notice to Customer if Customer fails to pay any fees when due and such breach remains uncured 15 days after Yield Day provides Customer with written notice of such breach.
    • Effect of Expiration or Termination. Upon any termination of this Agreement: (a) access to the Service and Yield Day’s obligation to provide and Customer’s right to access and use, the Service, will immediately terminate; (b) any amounts owed to Yield Day, including subscription and session-based fees, will be immediately due and payable, and there will be no refund of any previously paid fees; (c) Customer will promptly return to Yield Day all documents and material containing, reflecting, incorporating or based on any Yield Day Material and permanently erase all such information and material from all systems it directly or indirectly controls; and (d) all non-surviving licenses granted by either Party to the other Party hereunder will immediately terminate.
    • Any rights or obligations of the Parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration, including the rights and obligations set forth in Section 4 (Ownership), sub-Sections 6.3, 6.4, and 6.5 (Term; Termination), Section 7 (Confidentiality), Section 8 (Privacy and Security), Section 9 (Representations and Warranties), Section 10 (Indemnification), Section 11 (Limitation of Liability), and Section 12 (Miscellaneous).
  7. CONFIDENTIALITY
    • Scope of Confidential Information. From time to time during the Term, either Party (as “Disclosing Party”) may disclose or make available to the other Party (as “Receiving Party”) information about its business affairs, goods and services, confidential information, and materials comprising or relating to intellectual property rights, third party confidential information, and other sensitive or proprietary information; such information, as well as the terms of this Agreement (including pricing), whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” constitutes “Confidential Information.” In addition, Confidential Information of Yield Day includes Yield Day’s relationships with its resellers, partners, and licensors. “Representatives” means a Party’s Affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns. Confidential Information excludes information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of any breach of this Section by Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of Receiving Party or its Representatives before being disclosed by or on behalf of Disclosing Party; or (d) was or is independently developed by Receiving Party without reference to or use of any of Disclosing Party’s Confidential Information.
    • Protection of Confidential Information. Receiving Party shall: (a) protect and safeguard the confidentiality of Disclosing Party’s Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any Person, except (i) to Receiving Party’s Representatives who need to know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement and who are bound to the Receiving Party by comparable obligations of confidentiality as set forth in this Section; or (ii) pursuant to applicable federal, state, or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Receiving Party shall first provide Disclosing Party with: (A) prompt Notice of such requirement so that Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (B) reasonable assistance, at Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
    • The Receiving Party shall be responsible for any breach of this Section caused by any of its Representatives. The provisions of this Section shall survive termination or expiration of this Agreement for any reason after such termination or expiration. On the termination of this Agreement or at any time on the Disclosing Party’s request, Receiving Party and its Representatives shall promptly return or destroy all Confidential Information and copies thereof.
  8. PRIVACY AND SECURITY.
    • Applicable Data Protection Laws. Each Party shall comply with Applicable Data Protection Laws. “Applicable Data Protection Laws” means the data protection laws applicable to a Party in connection with the performance of its obligations, exercise of its rights, and the granting of rights and licenses under this Agreement, including, to the extent applicable, the California Consumer Privacy Act of 2018 and its final regulations.
    • Data Safeguards. Each Party shall implement and maintain reasonable security procedures and practices appropriate to protect the Personal Information that is under its control or in its possession. Each Party will promptly provide the other Party with written notice upon its knowledge of any security breach involving the other Party’s Personal Information. Such notice shall identify the facts and circumstances of the security breach, including when the breach occurred and the extent of the breach.
  9. Representations and Warranties
    • Each Party represents and warrants to the other Party that:
      • it is a company duly organized, validly existing, and in good standing in the jurisdiction of its formation;
      • it has the full right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and
      • it is in material compliance with all applicable laws, rules or regulations in connection with this Agreement and the operation of its business.
    • Customer represents and warrants to Yield Day that (i) it has all necessary rights to provide Yield Day with the access rights contemplated by this Agreement, including any required consents or disclosures required by applicable law, (ii) it is not violating any applicable laws by allowing Yield Day to provide the Services in accordance with this Agreement, (iii) Customer will not provide Yield Day with access to any data of an individual who has exercised a right that Customer has, directly or indirectly, committed to honoring or provided allowing the individual to opt out of having such data used to create audiences in connection with the Services, and (iv) in the event that an individual exercises an opt out referenced in clause (iii) above, Customer will ensure that Yield Day does not have access to such individual’s information. If Customer is an agency and Yield Day has approved Customer’s use of the Services as an agency on behalf of its advertiser customers, Customer represents and warrants to Yield Day that it has the authority to act as agent to the advertiser and will bind the advertiser to these terms as if such advertiser were the Customer.
    • Yield Day warrants to Customer that the Service will perform in accordance with the Documentation.
    • Except as expressly warranted in this Agreement, the Services and Documentation are provided “as-is” and neither Yield Day nor its vendors, suppliers, licensors or partners make(s) any warranties, oral or written, express or implied, arising from course of dealing, course of performance, usage of trade, or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title, non-interference or non-infringement. Yield Day makes no warranties and has no liability with respect to, any third party data, third party components, third party platforms or third party services. Neither Yield Day nor its vendors, suppliers, licensors or partners has any liability under this Agreement with respect to any performance problem, delay, or other matter to the extent attributable to any unauthorized or improper use or modification of the Services or Documentation, any unauthorized combination with other services, deliverables, platforms, software, hardware, or technology, or any act or omission by Customer, its Affiliates, or its representatives, contractors, vendors, suppliers or partners of Customer. Yield Day makes no warranty of any kind that the Services or any results of the use thereof will meet Customer’s or any other person’s requirements, achieve any intended result, be compatible or work with any software, system or other services, or be uninterrupted, or risk free.
  10. Indemnification
    • Yield Day Indemnification. Yield Day shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages and liabilities to the extent awarded by a court of competent jurisdiction or agreed to in a settlement and all related costs and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by Customer relating to or arising out any claim or demand brought by a third party alleging that the Service infringes or misappropriates any third party’s U.S. intellectual property or proprietary rights. Yield Day will have no obligation to defend, indemnify or hold harmless Customer for infringement or misappropriation claims to the extent arising from: (i) Customer’s use of the Service other than as permitted under this Agreement; (ii) the combination of the Service with any Customer material or any Customer or third party products, services, hardware, data, content, or business process(s) other than as permitted under this Agreement; or (iii) from the modification of Service by any party other than Yield Day or Yield Day’s agents. If Yield Day learns of any threat, warning or notice alleging that all or any component or feature of the Service violates a third party’s rights, Yield Day may, in its discretion and at no cost to Customer, subject to the exclusions in clauses (i) through (iii) above, (A) modify the Service so that it no longer infringes or misappropriates the third party’s rights, (B) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (C) terminate Customer’s subscription for that Service upon thirty (30) days’ written notice and refund to Customer any prepaid fees covering the remainder of the Term.  THE FOREGOING IS YIELD DAY’S SOLE AND EXCLUSIVE OBLIGATION FOR THE THIRD PARTY CLAIMS DESCRIBED IN THIS SECTION AND ANY INTELLECTUAL PROPERTY INFRINGEMENT AND MISAPPROPRIATION CLAIMS BY CUSTOMER.
    • Customer Indemnification. Customer shall indemnify, defend, and hold harmless Yield Day and its officers, directors, employees, agents, Affiliates, shareholders, members, successors, and permitted assigns (collectively, “Yield Day Indemnified Parties“) from and against any and all Losses incurred by any Yield Day Indemnified Party relating to or arising out any claim or demand brought by a third party alleging or arising out of (i) any use of the Service by Customer that is beyond the scope of or otherwise fails to conform to this Agreement, and (ii) any claim that the submission, provision or use of any Customer material or data to or through the Service violates applicable law or does or threatens to infringe, misappropriate or otherwise violate any intellectual property rights, privacy rights or other rights of any third party.
    • Indemnification Procedure. Each Party’s indemnification obligations are conditioned on the indemnified Party: (a) promptly giving written notice of the claim to the indemnifying Party; (b) giving the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle any claim unless the settlement unconditionally releases the indemnified Party of all liability for the claim and the indemnifying Party obtains the indemnified Party’s consent, not to be unreasonably withheld); (c) providing to the indemnifying Party all available information and assistance in connection with the claim, at the indemnifying Party’s request and expense; and (d) not compromising or settling such claim. The indemnified Party may participate in the defense of the claim, at the indemnified Party’s sole expense (not subject to reimbursement).
  11. Limitation of Liability
    • No Liability for Consequential or Indirect Damages. Except for liability for breach of Section 7 (Confidentiality), neither Party is liable to the other Party for consequential, indirect, incidental, special, exemplary or punitive damages arising out of this Agreement, whether or not the possibility of such damages has been disclosed in advance by the other Party or could have been reasonably foreseen by the Party, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based.
    • Maximum Aggregate Liability. Each Party’s maximum aggregate liability to the other Party arising out of this Agreement, under any legal or equitable theory (contract, tort or otherwise), will not exceed $1,000,000.
  12. Miscellaneous
    • Entire Agreement. This Agreement, including and together with any related exhibits, constitutes the exclusive and final agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
    • All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”, and with the correlative meaning, “Notify”) must be in writing and addressed to the other Party at its address set forth on Exhibit A (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid), or e-mail (with confirmation of transmission). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
    • The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
    • If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • No amendment to this Agreement is effective unless it is in writing and signed by an authorized Representative of each Party.
    • No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver under this Agreement: (i) any failure or delay in exercising any right, remedy, or in enforcing any condition under this Agreement; or (ii) any act, omission, or course of dealing between the Parties.
    • Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 7 (Confidentiality) would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section.
    • Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without Yield Day’s prior written consent, not to be unreasonably withheld. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
    • Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
    • Third-Party Beneficiaries.This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns.
    • Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”), shall be submitted for negotiation and resolution to the CEO or President of Yield Day (or to such other person of equivalent or superior position designated by Yield Day in a written Notice to Customer) and the CEO or President of Customer (or to such other person of equivalent or superior position designated by Customer in a written Notice to Yield Day), by delivery of written Notice (each, a “Dispute Notice”) from either Party to the other Party. Such persons shall negotiate in good faith to resolve the Dispute. If the Parties cannot resolve any Dispute within 30 days after delivery of the applicable Dispute Notice, either Party may file suit in a court of competent jurisdiction in accordance with the provisions of Section 12.12.
    • Choice of Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Delaware, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
    • Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the District of Delaware or, if such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in such courts. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
    • Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including any exhibits, schedules, attachments and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.
    • Export Compliance. Customer acknowledges that the Service may be subject to U.S. and foreign export and import restrictions.  Customer will not and will not allow any export or re-export of any part of the Service, or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations.  Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.  The Service is further restricted from being used for the design or development of terrorist activity without the prior permission of the United States government.
    • This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
    • Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement (except obligations to pay) will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s reasonable control, that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a “Force Majeure Event”). Each Party shall give the other Party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. Each Party shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under this Agreement.
    • Independent Contractors. The Parties are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, employment, partnership, or agency relationship between Yield Day and Customer.
    • Public Announcements. Neither Party may publicly disclose, issue any press release or make any other public statement, or otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, without the prior written approval of the other Party; provided, that Yield Day may include Customer’s name and logo on its website and in promotional materials.