Content License Agreement - New Constructs

NEW CONSTRUCTS CONTENT LICENSE AGREEMENT

This Content License Agreement (“Agreement”) is between New Constructs, LLC, a Georgia limited liability company (the “Company”), and the online subscriber (“Subscriber”). BY CLICKING “I AGREE” IN THE MEMBERSHIP REGISTRATION ON THE WEBSITE OR OTHERWISE AFFIRMATIVELY INDICATING ACCEPTANCE OF THIS AGREEMENT, OR BY ACCESSING OR USING THE COMPANY’S WEBSITES OR DATA PLATFORMS, SUBSCRIBER CONSENTS TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.

WITNESSETH:

WHEREAS, the Company expends considerable efforts and uses proprietary methodologies to compile and maintain content, including information, communications, opinions, text, formulas, data, graphics, links, electronic art, software and other material and data formatted, organized and collected in a variety of forms, including directories, data feeds, and databases (collectively, the “Content”) that it licenses to subscribers; and

WHEREAS, the Company offers subscriptions to the Content through a variety of electronic methods of access and/or delivery, including but not limited to its website at www.newconstructs.com (together with any APIs or other data access methods made available by the Company to Subscriber, the “Platform”); and

WHEREAS, Subscriber wishes to become a registered user of the Platform and to use the Content in its operations, and the Company is willing to permit Subscriber access to the Platform and license Subscriber the Content on the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the fees paid by Subscriber to the Company and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows:

1. Grant of License. Subject to the terms and conditions hereof, the Company grants to Subscriber, a limited, non-transferable, non-exclusive, revocable, and non-sublicensable (except as otherwise set forth herein) license to access and use the Platform and the Content only for the internal business operations of Subscriber. Subscriber agrees that any violation of this Agreement by any employee or agent of Subscriber shall constitute a violation of this Agreement by Subscriber and could result in immediate loss of access to the Platform and the Content and termination of this Agreement. Subscriber hereby expressly agrees that it shall not use or allow the use of records, data or information obtained through access to the Platform for the purpose of solicitation or any other use or practice not specifically permitted by this Agreement. Subscriber agrees that the Content will be accessed and used by Subscriber only in the manner expressly authorized and permitted by the Company as set forth herein. Subscriber agrees that the Platform shall not be used by it in any manner or for any purpose which is not authorized by the Company or which is likely to cause damage or disrepair to the equipment of the Company, to the Content or to the Platform.

2. Term. The term of Subscriber’s license to the Content, the type of service to be provided by the Company, the amount to be paid by Subscriber to the Company for access to the Content (the “Subscription Fee”) and the payment terms for the payment of the Subscription Fee are set forth on the online order summary when Subscriber orders its subscription. Subscriber agrees to pay to the Company the Subscription Fee in accordance with the terms set forth in the applicable online order. Company may increase the Subscription Fee at any time, subject to its giving the Subscriber a minimum 30-day notice in advance of the Agreement renewal date. At the end of the initial subscription term, the subscription shall automatically be extended for an additional term of the same length, and this Agreement shall automatically renew, unless either party notifies the other party at least thirty (30) days prior to the expiration of the initial term or any renewal term of its intention not to renew this Agreement.

3. Subscriber Acknowledgements and Restrictions on Use.

(a) Subscriber expressly acknowledges and agrees: (i) that the Company is not a registered investment advisor; (ii) that the Content and services provided by the Company do not constitute a recommendation to buy or sell securities of any kind or any other investment advice; (iii) that the Company has not undertaken any liability or obligation relating to the purchase or sale of any securities for or by Subscriber; and (iv) that use of the Platform or the Content by Subscriber is at Subscriber’s sole risk.
(b) Subscriber expressly acknowledges and agrees (i) that the Platform and the Content are protected by intellectual property laws, including United States patent, copyright trade secret and trademark laws; (ii) that the Platform and the Content are the proprietary information of the Company or its licensors, and (iii) that the Company retains all right, title and interest in and to the Platform and the Content. Subscriber shall not (1) acquire any right, title or interest in or to the Platform or the Content except as expressly provided in this Agreement or (2) impair, dispute or contest the Company’s ownership of or rights in the Platform or the Content.
(c) Subscriber expressly agrees that it shall not, directly or indirectly: (i) disclose, sell, resell, rent, lease, sublicense, distribute, market, duplicate, modify, copy, reproduce, transmit, distribute, provide access to, publish, create derivative works from, reverse engineer, display or otherwise transfer or commercially exploit any of the Content or any portion of the Platform, in whole or in part, except as expressly provided in Section 8 with respect to Insubstantial Portions, (ii) provide the Platform or the Content or any modified version or derivative work of the Platform or the Content created by or for the Company, on a timesharing, service bureau or other similar basis, (iii) remove, obscure or alter any copyright, trademark or proprietary notice in the Platform or the Content, (iv) copy the Platform or the Content or any portion thereof for any purpose other than what is expressly authorized in this Agreement, (v) use or modify the Platform or the Content in any way that would subject the Platform or the Content, in whole in or in part, to a Copyleft License, (vi) send, store, or authorize a third party to send or store spam, unlawful, infringing, obscene or libelous material, or malicious code, (vii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Platform or the Content, (viii) use the Platform or the Content or any intellectual property rights protected by applicable laws and contained in or accessible through the Platform or the Content for the purpose of building a competitive product or service or copying the features or user interface of the Platform or the Content, (ix) use the Platform or the Content, or permit either to be used, for purposes of product benchmarking or other comparative analysis intended for publication without the Company’s prior written consent, (x) use any robot, spider, harvesting bot, scraper, site search/retrieval application, or other manual or automatic device or process to download, retrieve, index, “data mine,” scrape or in any way reproduce or circumvent the navigational structure or presentation of the Platform or the Content, (xi) use any of the Company’s trademarks, or any variation thereof, as meta tags or otherwise, or (xii) display the Platform or portions thereof in things (“framing” or “mirroring”) without the express written permission of the Company.
(d) Subscriber expressly acknowledges and agrees that the Company reserves the right to (i) alter or delete elements, or withdraw, suspend, or discontinue any functionality or feature, of the Platform at any time; and/or (ii) enhance the Platform or the Content from time to time and offer additional capabilities at appropriate fees; provided that, in the event any such modification or discontinuance of the functionality or operation of the Platform in subsection (i) of this Section 3(d) occurs, the Subscriber has the right to terminate this Agreement immediately upon written notice to the Company. The continued accessing and use of the Platform or any Content by Subscriber following any enhancement under Subsection 3(d)(iii) shall conclusively be deemed acceptance of such enhancement and any corresponding fee increase.
(e) Subscriber shall not: (i) post on the Platform or transmit through or using the Platform any unlawful, threatening, harassing, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane, or indecent information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law; or (ii) post on the Platform or transmit through or using the Platform any information, software or other material which contains a virus, worm, Trojan horse or other code that contains contaminating or destructive properties or other harmful components.
(f) Subscriber shall not: (i) restrict or inhibit any other registered user from accessing the Platform; (ii) post on the Platform or transmit through or using the Platform any information, software, or other material which violates or infringes on the rights of others, including material which is an invasion of privacy or publicity rights or which is protected by copyright, trademark or other proprietary right, or derivative works with respect thereto, without first obtaining permission from the owner or right holder; or (iii) alter, damage or delete any Content.

4. Equipment and Connectivity. Subscriber is responsible for providing all hardware, software, telephone or other communications equipment and/or service for Subscriber to connect to the Internet and access the Platform and is responsible for all Internet access charges, telephone charges or other fees or charges incurred in connecting to the Internet and accessing the Platform and Content. Subscriber agrees that it is solely responsible for the knowledge of and adherence to any and all laws, statutes, rules and regulations pertaining to (i) access to and use of the Platform and the Content by Subscriber, (ii) the use of any networks or other services connected to the Platform and (iii) the communication means by which Subscriber connects its, his or her computer or other equipment to the Platform.

5. Usernames and Passwords. Upon execution of this Agreement and payment of all fees due and payable by Subscriber to the Company at the time of execution of this Agreement, the Company shall provide passwords and login identifications to Subscriber. Subscriber agrees to treat all passwords and login identifications as confidential and shall not disclose them to any person for any reason whatsoever. Passwords and login identifications are granted for the term of this Agreement. In the event that the confidentiality of login identifications or passwords is breached or compromised, Subscriber shall immediately notify the Company. Subscriber is responsible for any unauthorized use and/or access to the Platform that is caused by Subscriber’s failure to protect the secrecy of its passwords and login identifications.

6. Platform Operating Policies. The Company reserves complete and sole discretion with respect to the operation of the Platform. Subscriber shall comply with the operating policies established by the Company and as amended from time to time that govern user activities in connection with the Platform, which shall include the Terms of Use, Disclosures and Disclaimers, Privacy and Intellectual Property sections on the “General Legal” page of the Subscriber website (collectively, the “Platform Operating Policies”), which (together with any updates thereto) are incorporated herein by reference. Violation of any of the Platform Operating Policies may result in termination or suspension of access to the Platform. In the event of any conflict or inconsistency between the Platform Operating Policies and the terms of this Agreement, the terms of this Agreement shall control.

7. Links. The Company does not control or provide, nor is it responsible for any content, goods or services, available through sites on the Internet linked to or from the Platform. All such content, goods and services are made accessible on the Internet by independent third parties and are not controlled by the Company. The Company neither endorses nor is responsible for the accuracy, completeness, usefulness, quality or availability of any content, goods or services available on any site linked to or from the Platform, which are the sole responsibility of such independent third parties, and the use thereof by Subscriber is solely at Subscriber’s own risk. Subscriber specifically acknowledges and agrees that the Company shall not be responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused by Subscriber’s use of or reliance on the Content or use of or reliance on any content, goods or services available on any site linked to or from the Platform or Subscriber’s inability to access the Internet or any site linked to or from the Platform

8. Redistribution of Content by Subscriber. The parties acknowledge and agree that Subscriber may, from time to time, in the ordinary course of Subscriber’s business, redistribute to Subscriber’s clients Insubstantial Portions (as defined herein) of the Content furnished on the Platform in reports or presentations (whether in hard copy or electronic form) prepared by Subscriber. Any such redistribution of the Content by Subscriber shall clearly and unambiguously cite the Company (“New Constructs LLC©”) as the source and owner of the data contained in such reports or presentations and provide notice that such redistributed Content is protected under United States copyright laws. Notwithstanding anything herein to the contrary, if the Company notifies Subscriber that, in the reasonable business judgment of the Company, such redistribution by Subscriber, including the scope of such redistribution, involves more than Insubstantial Portions of the Content, Subscriber will immediately cease any such redistribution. For purposes of this Agreement, the term “Insubstantial Portions” shall mean such portions of the Content whose amount (a) has no independent commercial value and (b) could not be used by the recipient as a substitute for the Content or access to the Platform or a discrete or substantial part of either of them. Subscriber will indemnify and hold harmless the Company pursuant to Section 11 herein for any loss, damage, injury or expense (including reasonable attorneys’ fees) suffered by the Company that arises by reason of the redistribution of Insubstantial Portions by Subscriber.

9. Disclaimer of Representations and Disclaimer of Warranties.

(a) Although the information and materials presented on the Platform and included in the Content have been obtained or derived from sources believed by the Company to be reliable, the Company has not verified this information and undertakes no duty of due diligence or independent verification of any information it receives. The Company does not represent that the Content or information provided on the Platform is accurate, current or complete and it should not be relied on as such. The Company specifically disclaims responsibility for any errors or omissions in the Content.
(b) THE PLATFORM AND THE CONTENT IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND THE COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Neither the Company nor any of its Affiliates (as defined in Section 17 below), or their respective directors, officers, members, shareholders, employees, agents, representatives or contractors (hereinafter collectively referred to individually as a “Company Party” or collectively as the “Company Parties”) warrants that the Platform, the Content or any Internet site linked to or from the Platform will be uninterrupted or error free, that any errors or defects will be corrected, or that the Platform, or the server that makes it available, are free of viruses, worms, Trojan horses or other code that contain contaminating or destructive properties or other harmful components. Neither the Company nor any Company Party makes any warranty as to the results that may be obtained from the use of the Platform or the Content or any Internet site linked to or from the Platform or as to the timeliness, sequence, accuracy, authority, completeness, usefulness, noninfringement, reliability, availability, or substance of any content, information, service, or transaction provided through the Platform, including but not limited to the Content, or any site linked to or from the Platform.

10. Limitation of Liability.

(a) UNDER NO CIRCUMSTANCES SHALL THE COMPANY OR ANY COMPANY PARTY, BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER OR ARISING FROM THIS AGREEMENT, THE PLATFORM, THE CONTENT, OR ANY INTERNET SITE LINKED TO OR FROM THE PLATFORM, OR THE USE OF THE PLATFORM, THE CONTENT, OR ANY INTERNET SITE LINKED TO OR FROM THE PLATFORM, BY SUBSCRIBER, WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, ELECTRICAL SURGE/DAMAGE/INTERFERENCE, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION OR TERMINATION OF ACCESS, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, BREAKDOWN OF EQUIPMENT, SOFTWARE ERROR, INFRINGEMENT, UNAUTHORIZED ACCESS TO, OR THEFT, DESTRUCTION, ALTERATION, OR USE OF, RECORDS, EXCEPT WHEN SUCH DAMAGES ARE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT THE COMPANY OR OF A COMPANY PARTY.
(b) UNDER NO CIRCUMSTANCES SHALL THE COMPANY OR ANY COMPANY PARTY, BE LIABLE TO SUBSCRIBER OR ANY OTHER THIRD PARTY FOR ANY DECISION MADE OR ACTION TAKEN BY SUBSCRIBER IN RELIANCE ON THE PLATFORM OR THE CONTENT OR THE CONTENT CONTAINED WITHIN ANY INTERNET SITE LINKED TO OR FROM THE PLATFORM, OR THE USE OF THE PLATFORM OR THE CONTENT BY SUBSCRIBER. THE PLATFORM, THE CONTENT, AND THE CONTENT WITHIN INTERNET SITES LINKED TO OR FROM THE PLATFORM MAY INCLUDE TECHNICAL OR OTHER INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE CONTENT; THESE CHANGES WILL BE INCORPORATED IN NEW VERSIONS OF THE PLATFORM AND THE CONTENT AND SPECIFICALLY ARE INCLUDED HEREIN. THE COMPANY MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE PLATFORM AND IN THE CONTENT AT ANY TIME AND FROM TIME TO TIME WITHOUT NOTICE TO SUBSCRIBER.
(c) SUBSCRIBER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT THE COMPANY IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE, FRAUDULENT, OR OTHERWISE ILLEGAL OR UNLAWFUL CONDUCT OF SUBSCRIBER. IF SUBSCRIBER IS DISSATISFIED WITH THE PLATFORM, THE CONTENT, OR THIS AGREEMENT, IN WHOLE OR IN PART, SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM. IN NO EVENT WILL THE COMPANY HAVE ANY LIABILITY TO SUBSCRIBER FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

11. Indemnity. Subscriber agrees to indemnify and hold the Company and each Company Party harmless from any and all liabilities, losses, damages, claims and expenses incurred, including reasonable attorneys’ fees, arising from breach of this Agreement or any other Platform Operating Policy by Subscriber, or use of or access to the Platform or any Internet site linked to or from the Platform by Subscriber. Subscriber shall, at its sole cost and expense, investigate, handle, respond to and provide defense for any claim for which it gives indemnity herein, provided that, at its expense, the Company shall be afforded the right and opportunity to participate in any such investigation, defense or litigation regarding a claim for which it is indemnified through counsel of its own choosing.

12. Third Party Beneficiary Rights. The provisions of Sections 7, 9, 10, and 11 are for the benefit of the Company and each Company Party. Each of these individuals or entities shall have the right to assert and enforce those provisions directly. Except as expressly provided with respect to the Company Parties, this Agreement is not intended to and shall not be construed to confer any rights or benefits to any person or entity other than the parties hereto.

13. Representations and Warranties. Subscriber represents and warrants to the Company that this Agreement constitutes the valid obligation of Subscriber, legally binding upon it and enforceable against it in accordance with the terms hereof.

14. Termination.

(a) By the Company.
- (i) Termination for Cause; Suspension. The Company may terminate this Agreement if Subscriber breaches the terms hereof and does not remedy such breach within 10 days from receipt of written or emailed notice thereof. If the Company terminates this Agreement under this Section, Subscriber shall remain liable for any unpaid fees and the Company will be under no obligation to refund any license fees. The Company will further have the ability to pursue any and all other remedies against Subscriber. In addition to the termination rights set forth above, Company may immediately suspend or disable Subscriber’s access to the Platform or Content if Subscriber exceeds the scope of the license granted herein or in any way compromises the integrity, confidentiality, security, or value of the Platform or Content; or if Company in its sole discretion deems such suspension or disabling is appropriate to comply with applicable law or prevent any harm to its, Subscriber’s, or any third party’s systems or data..
- (ii) Termination without Cause. The Company may terminate the right of Subscriber to access the Platform and Content at any time, on at least 30 days’ prior written notice.
(b) By Subscriber. Subscriber may terminate this Agreement at any time if the Company materially breaches its obligations hereunder and does not cure such breach within 30 days from receipt of written notice thereof. Subscriber may cancel its subscription at any time on at least 30 days’ prior notice by following the cancellation instructions on the website. Subscriber shall remain liable for any unpaid fees through and following termination and shall remain obligated under all provisions that survive termination of this Agreement.
(c) Upon the expiration or termination of this Agreement, Subscriber may keep all originals (and any copies thereof) of any writings and other materials reflecting or incorporating the Content for internal research documentation or regulatory purposes only. TERMINATION DOES NOT RELIEVE SUBSCRIBER OF ITS OBLIGATIONS HEREUNDER REGARDING THE USE AND CONFIDENTIALITY OF THE CONTENT.

15. Notices. All notices, requests and demands to or upon the parties hereto shall be in writing and deemed to have been properly given or made when properly transmitted via email, addressed as follows or to such other email address as may be designated hereafter in writing by the respective parties:

To the Company:
New Constructs, LLC
Attn: David Trainer
5110 Maryland Way, Suite 350
Brentwood, TN 37027
david.trainer@newconstructs.com

To the Subscriber:
Email: the email address provided via the Company’s website during the registration process

Such notice shall be deemed duly given (a) the date of transmission, if such notice or communication is delivered via email attachment at the email address as set forth above at or prior to 5:30 p.m. (New York City time) on a business day, or (b) the next business day after the date of transmission, if such notice or communication is delivered via email attachment at the email address as set forth above on a day that is not a business day or later than 5:30 p.m. (New York City time) on any business day. For those communications or records that the parties are otherwise required under applicable law to provide in a written paper form, the parties agree that each may provide such communications or records to the other by means of electronic communications as set forth in this Section 15.

16. Confidentiality.

(a) In connection with Subscriber’s accessing of the Platform, Confidential Information of the Company may be disclosed, or may have been disclosed in contemplation of the execution of this Agreement, to Subscriber. For purposes hereof, “Confidential Information” shall be any information of the Company which is treated by the Company as being confidential and proprietary or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the components, capabilities and attributes of the Content and the Company’s trade secrets including the Content. Subscriber covenants and agrees that neither Subscriber, nor its agents, employees, officers, directors or representatives, will (i) disclose or cause to be disclosed any Confidential Information of the Company, except to those employees, representatives, or contractors of Subscriber who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose third-party confidential or proprietary information disclosed to such party or (ii) reproduce, copy or otherwise duplicate any Confidential Information. Subscriber will use the same degree of care that it uses to protect the confidentiality of their own confidential information of like kind (but not less than reasonable care). Confidential Information of the Company disclosed to Subscriber shall not be used by Subscriber for any purpose outside the scope of this Agreement. Confidential Information shall remain the property of the Company. Subscriber shall be responsible for any breach of the provisions of this Section 16 by any person or entity it shares Confidential Information with, and shall indemnify the Company for such a breach pursuant to Section 11 of this Agreement.
(b) If Confidential Information is required to be disclosed by law, regulation or court order, such disclosure shall be permitted to the extent legally required provided that Subscriber gives to the Company reasonable prior notice to enable the Company to seek a protective order or confidential treatment prior to such disclosure. Subscriber shall return all Confidential Information to the Company upon termination of this Agreement or upon request by the Company, except that Subscriber may retain Confidential Information of the Company solely to the extent necessary for internal research documentation or regulatory purposes only subject to written notice to the Company as to what Confidential Information it is retaining and subject to continued maintenance of such information as confidential pursuant to the terms hereunder, and otherwise only with written permission of a duly authorized representative of the Company.
(c) With the exception of Confidential Information regarding the Content, its components and methods of calculation and compilation which shall survive termination or expiration of this Agreement without any time restriction, the provisions of this Section 16 shall survive termination or expiration of this Agreement for a period of two (2) years from disclosure of the last item of Confidential Information.

17. General Terms.

(a) Entire Agreement; Amendments. This Agreement, and any Platform Operating Policy comprise the entire agreement between the Company and Subscriber and supersedes any prior agreements, and all other prior or contemporaneous oral communications and agreements; all prior written communications and agreements with respect to the subject matter herein are merged herein and superseded. The Company may revise this Agreement or any other Platform Operating Policy at any time and from time to time, and such revision shall be effective ten (10) days after written notice to Subscriber. If any such revision is unacceptable to Subscriber, Subscriber’s sole remedy shall be to discontinue accessing the Platform and Content. The continued accessing and use of the Platform or any Content by Subscriber following notice of any such revision shall conclusively be deemed acceptance of all such revisions.
(b) Severability. If any provision of this Agreement shall be held invalid or unenforceable, that portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intention of the parties and the remaining portions will continue in full force and effect.
(c) Waiver. The failure of the Company to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
(d) Governing Law. This Agreement shall be governed by the laws of the State of Delaware, excluding its conflict of laws rules. All disputes related to this Agreement, Platform, or Content will be exclusively resolved via binding arbitration conducted in Nashville, TN by the American Arbitration Association in accordance with its commercial arbitration rules. If any dispute arises between the parties pertaining to their respective rights and obligation as specified in this Agreement, the prevailing party will be entitled to reasonable attorney’s fees and costs incurred by that party.
(e) Injunctive Relief. Subscriber acknowledges that the Company will suffer substantial damages not readily ascertainable or fully compensable in terms of money in the event of the breach of any of the provisions of this Agreement. Notwithstanding Section 17(d) above, Subscriber agrees that the Company shall be entitled (without limitation of any other rights or remedies otherwise available to the Company) to obtain an injunction from any court of competent jurisdiction preventing or prohibiting the continuance or recurrence of any breach of the provisions of this Agreement.
(f) Assignment. Subscriber may not assign or transfer this Agreement without the Company’s prior written consent (not to be unreasonably withheld). If Subscriber undergoes a transaction pursuant to which it becomes directly or indirectly controlled by a competitor of Company, or sells its assets to an entity that is directly or indirectly controlled by a competitor of Company, Subscriber will promptly (in any event, within 30 days of the consummation of such transaction) notify Company in writing of such event and Company will have the right to immediately terminate this Agreement in its discretion.
(g) Force Majeure. The Company shall not incur any liability due to failure or delay in performance of any obligation (other than a payment obligation hereunder) caused by Force Majeure, at least for the duration of the Force Majeure. The term “Force Majeure” shall mean and include any act of God, industry-wide strikes, explosion, fire, flood, war and other hostilities, civil commotion, governmental acts, or any other circumstance of a similar nature beyond the reasonable control of the Company.
(h) Survival. The provisions of Sections 3, 4, 7, 8, 9, 10, 11, 12, 13, 16, and 17 hereof shall survive the termination or expiration of this Agreement.
(i) Further Assurances. Each of the parties agrees to execute and deliver all such documents, to provide all such information, and to take or forbear from taking all such actions, as any other party may reasonably request in order to achieve the purposes of this Agreement.
(j) Headings. The headings in this Agreement, including all section titles or captions, are inserted for convenience only and shall not constitute a part hereof nor affect the interpretation of this Agreement.