SOFTWARE AS A SERVICE AGREEMENT

LAST UPDATE: [NOVEMEBER 13, 2019]

IMPORTANT – READ THIS CAREFULLY BEFORE ACCESSING OR USING THIS PROPRIETARY SOFTWARE AS A SERVICE.

THIS SOFTWARE AS A SERVICE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT AND A PART OF THE SERVICE ORDER BY AND BETWEEN ACT INNOVATE, INC. D/B/A FUNERAL INNOVATIONS (“PROVIDER”) AND CUSTOMER, AS LISTED ON THE RESPECTIVE SERVICE ORDER, AS THE LICENSEE OF THE PROPRIETARY DIGITAL MARKETING SOFTWARE SERVICES.

  1. Definitions.  Capitalized terms used in this Agreement and not defined herein shall have the meanings set forth, or referred to, in this Section.
    • 1.1   “Access Credentials” means any user name, password, license or security key or other security control used, alone or in combination, to verify an individual’s identity and authorization to access and use the SaaS Service.
    • 1.2   “Authorized Users” means Customer’s employees, contractors, and agents authorized to access and use the SaaS Service solely for Customer’s internal business purposes, in accordance with this Agreement.
    • 1.3   “Customer Data” means information, data, and other content, in any form or medium, that is uploaded into or otherwise transmitted by or on behalf of Customer or an Authorized User through the SaaS Service.
    • 1.4   “Documentation” means any end user manuals, specifications or other documents that Provider provides or makes available to Customer in any form or medium relating to the SaaS Service.
    • 1.5   “IP Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
    • 1.6   “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
    • 1.7    “Open Source Software” means all open source software, public source software, “copyleft” software, shareware, freeware and similar software, as such terms are understood in the software industry, in both object code or source code form.
    • 1.8   “Provider Systems” means the information technology infrastructure used by or on behalf of Provider in providing the SaaS Service, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third party services.
    • 1.9   “Service Order” means an order on a form issued by Provider that is signed by Customer and Provider and that specifies: the SaaS Service ordered by Customer; the associated pricing, quantity and metrics; and the applicable Service Term.
    • 1.10   “Third Party Materials” means materials and information, in any form or medium, including any other software, documents, data, content, specifications, products, equipment, or components of or relating to the SaaS Service that are not proprietary to Provider.
  2. SaaS Services.
    • 2.1   SaaS Services.  Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement (including the applicable Service Order), during the term set forth in the applicable Service Order (“Service Term”): (a) Provider will provide to Customer the cloud services described in the applicable Service Order (“SaaS Service”); and (b) Customer has the non-exclusive, non-assignable (except pursuant to a permitted assignment of this Agreement), limited right to access and use the SaaS Service solely for use by Authorized Users in accordance with the terms and conditions herein for Customer’s internal business purposes. Customer is responsible for the acts and omissions of each Authorized User to the same extent and effect as if Customer had taken such action or committed such omission.
    • 2.2    Automatic Renewal. Each Service Term under a Service Order will renew automatically for successive one-year periods, unless either Party provides written notice to the other Party of its intention not to renew at least thirty (30) days prior to the end of the then-current Service Term. Unless otherwise set forth in a Service Order, pricing during each renewal term of a Service Order shall be Provider’s then current pricing for the SaaS Service.
    • 2.3    Changes.  Provider reserves the right, in its sole discretion, to change or modify the SaaS Service in any manner that it deems necessary or desirable without notice to Customer.
    • 2.4    Limitations and Restrictions.  Customer shall not, and shall not permit any Authorized User or other third party to, access or use the SaaS Services or Documentation or any derivative works thereof (collectively, “Provider Materials”) except as expressly permitted by this Agreement.  Without limiting the foregoing, Customer shall not:  (a) copy, modify, or create derivative works or improvements of any Provider Materials; (b) rent, lease, lend, sell, resell, sublicense, assign (except pursuant to a permitted assignment of this Agreement), distribute, publish, or transfer any Provider Materials to any third party; (c) otherwise make available any Provider Materials to any third party, except as permitted in Section 2.1 with respect to Authorized Users; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any Provider Materials, in whole or in part; (e) bypass or breach any security device or protection used by any of the Provider Materials or access or use any of the Provider Materials other than through the use of then valid Access Credentials; (f) input, upload, transmit, store or otherwise provide to or through the SaaS Service any Customer Data or other information or materials that (i) contain or transmit any virus or other malicious code, or (ii) are unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy right or right of publicity, or racially or ethnically objectionable, or (iii) infringe upon or violate the IP Rights of any third party; or (g) remove, delete, alter, or obscure any IP Rights notices from any Provider Materials. Further, Customer shall use the SaaS Services, and shall cause the Authorized Users to use the SaaS Services, solely in accordance with the Documentation.
    • 2.5    Customer Data. Customer is solely responsible for: (a) all Customer Data, including its use, completeness, accuracy, quality, legality and reliability; (b) all information, instructions, and materials provided by or on behalf of Customer in connection with the SaaS Services; (c) the security and use of Customer’s Access Credentials; and (d) all access to and use of the Provider Materials by or through the Customer’s Access Credentials. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA. Customer represents, warrants, and covenants to Provider that Customer owns or otherwise has the necessary rights and consents in and relating to the Customer Data, so that Provider’s receipt, possession of and processing of the Customer Data in accordance with this Agreement does not and will not infringe, misappropriate, or otherwise violate any IP Rights or any privacy or other rights of any third party or violate any applicable Law. Provider reserves the right to remove or disable access to Customer Data without prior notice or liability to Customer if Provider, in its sole discretion, determines Customer is in violation of this Agreement with respect to Customer’s obligations regarding Customer Data.  Provider shall not provide or otherwise disclose to any competitor of Customer any information provided by Customer to Provider.
    • 2.6   Third-Party Platforms.  The SaaS Service may contain or require the use of third-party platforms. Customer’s use of third-party platforms is governed by the separate license terms specified by such third-party platform provider. Provider hereby disclaims all warranties with respect to any third-party platform and disclaims any liability to Customer or any third party based on any claims arising out of use of third-party platforms.
  3. Fees and Payment.
    • 3.1   Fees.  Customer shall pay Provider the fees set forth on each Service Order (“Fees”) in accordance with the terms of this Section 3. Customer shall pay all Fees upon entering this Agreement. Customer shall make all payments hereunder in US dollars. All amounts payable to Provider under this Agreement are non-cancelable and all Fees paid are non-refundable (except as otherwise provided in Section 7.2(b)). Provider does not collect, store, process, transfer, or otherwise use credit card or other payment information and is not responsible or liable to you concerning any credit card or payment information you provide to complete a payment transaction for your online purchase. All online payment transactions are executed through Provider’s third party payment processing vendor. All such transactions are subject to such third party payment processing vendor’s separate terms and conditions.
    • 3.2  Taxes.  All Fees and other amounts payable by Customer under this Agreement are exclusive of applicable taxes, levies, duties or similar governmental assessments. Customer is responsible for paying all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income. 
    • 3.3   Late Payment.  If Customer fails to make any payment when due then, in addition to all other remedies that may be available to Provider:  (a) Provider may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable Law; and (b) Customer shall reimburse Provider upon demand for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
  4. IP Rights; U.S. Government Rights.
    • 4.1   Reservation of Rights.  Subject to the limited rights expressly granted in this Agreement to Customer, Provider reserves and retains all right, title, and interest in and to the Provider Materials, including all IP Rights therein and thereto. No rights are granted to Customer hereunder other than as expressly set forth herein.
    • 4.2   Customer Data.  Subject to the license granted herein to Provider, as between the Parties, Customer owns all right, title, and interest in and to the Customer Data, including all IP Rights therein. Customer hereby grants to Provider a non-exclusive, worldwide, transferable, sub-licensable (to its subcontractors), royalty-free, fully paid-up license during the Term to process the Customer Data in order to provide Customer with the SaaS Service. 
    • 4.3   U.S. Government Rights. The Provider Materials are “commercial items,” as that term is defined in 48 C.F.R. §2.101. Any use modification, reproduction, release, performance, display, or disclosure of the Provider Materials by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. If a government agency has a need for rights not granted under these terms, it must negotiate with Provider to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
  5. Confidentiality.
    • 5.1   Confidential Information. In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information (as defined below) to the other Party (as the “Receiving Party”). “Confidential Information” means any non-public information or data (including information or data received by the Disclosing Party from a third party and as to which the Disclosing Party has confidentiality obligations) provided or disclosed by the Disclosing Party or its Representatives to the Receiving Party that is:  (a) marked as the confidential or proprietary information of the Disclosing Party; or (b) not falling within the prior clause (a) of this sentence, but which a reasonable person would conclude is of a confidential nature given the type of information disclosed and the facts and circumstances surrounding such disclosure. Without limiting the foregoing, the Parties agree that (i) all Provider Materials are the Confidential Information of Provider; (ii) all Customer Data is the Confidential Information of Customer; and (iii) the terms of this Agreement constitute the Confidential Information of both Parties. Confidential Information does not include information that (1) was rightfully known to the Receiving Party without obligation of confidentiality prior to such information being disclosed; (2) is or becomes part of the public domain through no fault of the Receiving Party or any of its employees, officers, directors, consultants, agents, contractors, or legal advisors (collectively, “Representatives”); (3) was or is rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (4) the Receiving Party can demonstrate by written or other documentary records was independently developed by the Receiving Party without access to any of the Disclosing Party’s Confidential Information.
    • 5.2   Receiving Party’s Obligations.  The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s Representatives who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder. The Receiving Party shall safeguard the Disclosing Party’s Confidential Information using at least the same degree of care it uses to protect its own similar information and in no event less than a reasonable degree of care.
    • 5.3   Permitted Disclosure. Each Party, notwithstanding the foregoing, may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under this Agreement, including to make required court filings.
    • 5.4   Return of Confidential Information.  Upon the expiration or termination of this Agreement for any reason, or upon the reasonable request of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party all Confidential Information of the Disclosing Party, together with any copies that may be authorized herein, or, if requested by the Disclosing Party, shall promptly destroy such Confidential Information and certify such destruction to the Disclosing Party.
  6. Disclaimer of Warranties
    THE SAAS SERVICE AND PROVIDER MATERIALS ARE PROVIDED “AS IS,” AND PROVIDER AND ITS LICENSORS AND SERVICE PROVIDERS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR LICENSOR OF THE THIRD-PARTY MATERIALS.
  7. Term and Termination.
    • 7.1   Term.  The term of this Agreement (“Term”) shall commence on the date Customer establishes an account with Provider and Customer’s first payment has been processed by Provider’s third-party payment processing vendor and continue until all outstanding Service Terms under any Service Orders expire or are terminated in accordance with Section 7.3. Expiration or termination of one Service Order shall not affect any other Service Order, unless the Agreement as a whole is terminated under Section 7.3.
    • 7.2   Suspension; Discontinuance. 
      • (a) Provider may suspend Customer’s and/or any Authorized Users’ access to or use of all or any part of the SaaS Service, without notice and without incurring any resulting obligation or liability, if:  (i) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (ii) Customer fails to pay any amount when due hereunder. This Section 7.2 does not limit any of Provider’s other rights or remedies, whether at law, in equity or under this Agreement. Any such suspension shall have no effect on Customer’s liability for amounts due under this Agreement.
      • (b) Provider reserves the right, in its sole discretion, to discontinue any SaaS Services, in whole or in part, but will use commercially reasonable efforts to provide at least 30 days’ advance notice to Customer in such instance. Provider shall not be liable to Customer for any such discontinuance of a SaaS Service; except that, if Provider discontinues a SaaS Service in its entirety, then Provider shall refund to Customer a pro rata portion of any prepaid Fees for such SaaS Service based on the remaining length of the Service Term as of the date of such SaaS Service discontinuance. Provider shall have no other liability for any such discontinuance of SaaS Services.
    • 7.3   Termination.  In addition to any other express termination right set forth elsewhere in this Agreement:
      • (a) Provider may terminate this Agreement in its entirety (including all Service Orders), or the affected Service Order(s), effective upon written notice to Customer, if Customer  (i) fails to pay any amount when due hereunder, and such failure continues more than seven (7) days after Provider’s delivery of written notice thereof, or (ii) breaches any of its obligations under Section 2.4; and
      • (b) either Party may terminate this Agreement in its entirety (including all Service Orders) or the affected Service Order(s), effective upon written notice to the other Party, if the other Party breaches this Agreement (except as set forth in Section 7.3(a)), and such breach (i) is incapable of cure, or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; and
      • (c) Provider may terminate this Agreement in its entirety (including all Service Orders) or the affected Service Order(s) by providing the Customer with at least thirty (30) days prior written notice.
    • 7.4   Effect of Expiration or Termination.  Upon any expiration or termination of this Agreement, all rights and licenses granted to Customer hereunder will immediately terminate and Provider may disable all Customer’s and its Authorized Users’ access to the SaaS Services and other Provider Materials. Subject to Customer’s payment in full of all past due Fees, upon termination of this Agreement, Customer may access the SaaS Services for fourteen (14) days following the termination of this Agreement, solely for the purpose of obtaining a final extract of the Customer Data. Thereafter, Provider may delete all Customer Data and other information relating to Customer’s account that is stored via the SaaS Services. Notwithstanding the foregoing, Customer acknowledges and agrees that content posted prior to termination of this Agreement by Provider on Customer’s behalf through the SaaS Services to third-party platforms shall continue to be accessible through such third-party platform; and the terms and conditions of this Agreement shall survive termination of this Agreement with respect to such content for as long as such content remains accessible through such third party’s platform. Upon any expiration or termination of this Agreement, Customer shall immediately cease using the Provider Materials and the Parties shall promptly comply with Section 5.4. In the event of a conflict between the terms of Section 5.4 and this Section 7.4, the terms of this Section 7.4 shall control and govern. The expiration or termination of this Agreement will not (a) prejudice or affect any right of action or remedy that has accrued or will accrue to either Party due to the other Party’s acts or omissions prior to the effective date of the termination or expiration, or (b) relieve Customer of its obligation to pay all charges that have accrued or have become payable to Provider hereunder. If one or more Service Orders (but not all outstanding Service Orders) are terminated or have expired, then the foregoing provisions of this Section 7.4 shall apply only with respect to such terminated or expired Service Order(s).
    • 7.5   Survival.  Any right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement, including the provisions of the following Sections:  1 (Definitions); 2.5 (Customer Data); 2.6 (Third-Party Platforms); 3 (Fees and Payment); 4 (IP Rights; US Government Rights); 5 (Confidentiality); 6 (Disclaimer of Warranties); the last two sentences of 7.2(b); 7.4 (Effect of Expiration or Termination); 7.5 Survival; 8 (Indemnification); 9 (Limitations of Liability); and 10 (Miscellaneous) excluding 10.1 (Export Compliance).
  8. Indemnification.
    • 8.1   Infringement Claims.  If any claim, action, suit, or proceeding (“Claim”) is brought by a third party against Customer on the basis of an allegation that the Provider Materials infringe upon or misappropriate a third party’s United States patent or a third party’s copyright that is enforceable in the United States (“Infringement Claim”), then Provider shall:  (a) at its expense, defend or, at its option, settle such Infringement Claim, and (b) pay all losses, damages, judgments, assessments, fines, costs, and expenses (including court costs and reasonable attorneys’ fees) (collectively, “Liabilities”) finally awarded against Customer arising out of such Infringement Claim or agreed upon in a settlement of such Infringement Claim approved by Provider. Any amounts paid by Provider pursuant to the foregoing sentence shall be deemed direct damages for purposes of this Agreement. Notwithstanding the foregoing, Provider will have no obligation or liability hereunder with respect to any Infringement Claim to the extent that it arises out of or is related to:  (i) access to or use of the Provider Materials in combination with any hardware, systems, software, network, or other materials or services not provided by Provider; (ii) modification of the Provider Materials by any party other than Provider; (iii) the Customer Data, including any processing of Customer Data by or on behalf of Provider in accordance with this Agreement; (iv) any other materials or information provided by or on behalf of Customer; or (v) any Open Source Software.
    • 8.2   Infringement Mitigation.  If such an Infringement Claim is made or appears possible, Provider, at its sole discretion, may: (a) obtain for Customer the right to continue to use such Provider Materials as contemplated by this Agreement, or (b) replace or modify the applicable Provider Materials, in whole or in part, so that they are no longer subject to, or likely to become subject to, an Infringement Claim, while providing substantially equivalent features and functionality. If neither of the foregoing options are commercially practicable, as determined by Provider in its sole discretion, then Provider may terminate the affected Service Order(s) upon written notice to Customer.
    • 8.3   Customer Indemnification.  If any third-party Claim is brought against Provider or its subcontractors and/or each of its and their respective officers, directors, employees and agents (each, a “Provider Indemnitee”) arising from or in connection with:
      • (a) Customer Data, including any processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
      • (b) any other materials or information provided by or on behalf of Customer, including Provider’s compliance with any directions provided by or on behalf of Customer;
      • (c) an allegation of facts that, if true, would constitute Customer’s breach of any of its duties or obligations to Customer’s clients or prospective clients of Customer’s products and/or services; or
      • (d) an allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; 

        then, in each case, Customer shall:  (i) at its expense, defend or, at its option, settle such Claim, and (ii) pay all Liabilities finally awarded against any Provider Indemnitee(s) arising out of such Claim or agreed upon in a settlement of such Claim approved by Customer. Any amounts paid by Customer pursuant to the foregoing shall be deemed direct damages for purposes of this Agreement.

    • 8.4   Indemnification Procedures. In connection with a Party’s (“Indemnifying Party”) obligations to indemnify the other Party pursuant to this Agreement (“Indemnified Party”), the Indemnified Party shall promptly notify the Indemnifying Party after receipt of notice of a Claim; provided that a delay by the Indemnified Party in providing such notice shall not relieve the Indemnifying Party of its defense and indemnity obligations hereunder, except to the extent that such delay materially prejudices the Indemnifying Party’s ability to defend such Claim. The Indemnifying Party, at its sole expense, shall promptly assume the defense of such Claim and shall have sole control over the defense of such Claim, including any proposed settlement (subject to the requirements below with respect to settlement). The Indemnified Party shall reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s request and sole expense, in connection with the Indemnifying Party’s defense of such Claim. In addition, the Indemnified Party may participate, in its sole discretion, in any such Claim using its own counsel at its own expense.  The Indemnifying Party shall not settle any such Claim without first obtaining the Indemnified Party’s prior written consent where the settlement of such Claim results in any admission of wrongdoing or liability on the part of the Indemnified Party, imposes any obligation on the Indemnified Party (other than, in the case of an Infringement Claim, an obligation for Customer to cease using the allegedly infringing Provider Materials), or imposes any liability on the Indemnified Party (other than monetary liability for which the Indemnified Party is fully indemnified by the Indemnifying Party).
    • 8.5   Exclusive Remedy. This Section 8 states Provider’s sole and exclusive obligations and Customer’s sole and exclusive remedies with respect to any actual, threatened, or alleged claim that the Provider Materials infringe, misappropriate, or otherwise violate any IP Rights.
  9. Limitations of Liability.
    • 9.1   Exclusion of Certain Damages.  IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS OR SERVICE PROVIDERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, DAMAGE OR LOSS OF USE OF DATA, BUSINESS INTERRUPTIONS, AND LOST BUSINESS OPPORTUNITY), REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.
    • 9.2   Cap on Monetary Liability.  IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS AND SERVICE PROVIDERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE (REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE), EXCEED THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO PROVIDER DURING THE THEN-CURRENT SERVICE TERM. THE FOREGOING DAMAGES CAP APPLIES NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.
  10. Miscellaneous.
    • 10.1   Force Majeure.  Neither Party will be liable to the other Party or will be subject to termination of this Agreement by the other Party for any delay, nonperformance, loss or damage (other than for failure to pay any amount when due) because of reasons beyond its reasonable control including, but not limited to, acts of God, acts of government, war, riots, civil unrest, power failures, accidents in transportation or other causes beyond the reasonable control of the respective Party.
    • 10.2   Feedback.  If Customer provides any suggestions, comments, recommendations for improvement or other feedback with respect to any Provider Materials (“Feedback”), then Provider shall be free to use, disclose, distribute, reproduce, license, sublicense or otherwise commercially exploit such Feedback as Provider sees fit, entirely without obligation or remuneration to Customer or restriction of any kind. Both Parties agree that all Feedback is and shall be given entirely voluntarily by Customer.  Customer shall and hereby does irrevocably assign to Provider all Feedback and all IP Rights in the Feedback provided by Customer.  Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Provider may reasonably request, to perfect Provider’s ownership of the Feedback and the IP Rights therein.
    • 10.3  Export Compliance. Customer may not remove or export from the United States or allow the export or re-export of any part of the Provider Materials, or any direct product thereof, in violation of any Laws of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign governmental agency or authority.
    • 10.4  Customer Disputes with Third Parties.  Customer agrees that Provider shall not be responsible or liable for any loss or damage of any sort incurred as the result of Customer’s dealings with third parties. If there is a dispute between Customer and any third party, Customer understands and agrees that, except as otherwise expressly stated in Section 8, Provider is under no obligation to participate, support Customer or become involved in Customer’s defense. If Customer has such a dispute, Customer hereby irrevocably releases Provider and its officers, employees, agents, successors and assigns from all claims, demands and damages of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes.
    • 10.5   Notices.  All notices required under this Agreement shall be in writing, in the English language, addressed to the respective Party at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving notice from time to time in accordance with this Section 10.5), and must be given via (a) personal delivery, or (b) prepaid overnight courier or U.S. mail, with tracking of actual delivery or rejection.  Any notice sent by a Party shall be deemed to have been duly given to the other Party when (i) personally delivered, or (ii) actually delivered or rejected, when sent by prepaid overnight courier or U.S. mail, with tracking of delivery or rejection.
    • 10.6   Assignment.  Customer shall not assign this Agreement, in whole or in part, in each case whether voluntarily, involuntarily, by operation of Law or otherwise without Provider’s prior written consent. Any purported assignment in violation of this Section 10.6 is void. This Agreement shall be binding on and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.
    • 10.7   Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the Parties. Neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. 
    • 10.8   Publicity. At any time without notice, Provider may develop customer reference materials and media relations documents regarding this Agreement and/or Customer’s usage and experience with Provider; provided, however, that Provider shall not identify Customer by name, logo, or other trade or service marks in such materials or documents. In addition, with Customer’s prior, written approval, which shall not be unreasonably withheld, Provider may use Customer’s name and its trademark as a reference both publicly and privately, without limitations, in Provider’s marketing and promotional materials, including but not limited to, press releases, newsletter articles, web site references, and e-mail.
    • 10.9   Governing Law; Limitation on Actions. This Agreement is governed by and construed in accordance with the Laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the Laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the appropriate federal or state courts in the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Customer will not bring a legal action arising out of or related to this Agreement more than two years after the cause of action arose.
    • 10.10   Equitable Relief. Each Party acknowledges and agrees that a breach by a Party of any of its obligations under Section 5 or, in the case of Customer, Section 2.4, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including an injunction, specific performance, and any other equitable relief that may be available from any court, without any requirement to post a bond or other security and without prejudice to such Party’s right to exercise any other rights and remedies it may have.
    • 10.11   Severability. If any term or provision of this Agreement shall be determined to be invalid or unenforceable by a court or body of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity or unenforceability and the remainder of this Agreement shall not be affected thereby, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable Law.
    • 10.12   Entire Agreement; Order of Precedence.  This Agreement (including all Service Orders) constitutes the sole and entire agreement of the Parties with respect to the subject matter herein and supersedes all prior and contemporaneous understandings, proposals, agreements, or communications, both written and oral, with respect to such subject matter. In the event of any inconsistency between the body of this Agreement and any Service Order, the terms set forth in the Agreement shall control and prevail unless expressly superseded in the respective Service Order.
    • 10.13   Updates to this Agreement. Provider may update this Agreement from time-to-time and post the updated version at https://funeralinnovations.com/home/terms-of-use The Agreement posted at the time of signing the Service Order will govern for the initial Service Term of the Service Order. However, upon renewal, the then-current Agreement will govern for the next renewal Service Term. 
    • 10.14   Waiver.  A waiver by any Party of any of the covenants, conditions, or contracts to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or obligation herein.
    • 10.15  By manually adding any person’s contact information into the Funeral Innovations system, Customer agrees that that person has given explicit, written consent to the Customer to receive automated emails, texts, or other forms of communication from the Funeral Innovations system and clears the Provider of any claim, action, or suit made against the the Customer. The Customer acknowledges that it is their sole responsibility to obtain such consent from those customers and does not hold liable the Provider.