Kraftful has been acquired by Amplitude! Read the story
Kraftful has developed a proprietary platform that helps product teams build better products by listening to users at scale (the “Platform”). This Master Services Agreement and the applicable Order Form(s) (collectively, this “Agreement”) govern Customer’s use of the Platform. (Customer and Kraftful are referred to herein individually as a “Party” and collectively as the “Parties”). If the parties have executed a data processing addendum, that addendum is incorporated into this Software Agreement by reference and forms part of the Agreement.
1.1 Platform License. Subject to Customer’s compliance with the terms and conditions hereof, Kraftful hereby grants to Customer a limited, non-transferable, and non-exclusive license (the “License”) to access and use the Platform during the Term solely in accordance with the terms of this Agreement and any specifications, instructions, and documentation (collectively, the “Documentation”) provided by Kraftful from time to time. The License shall be subject to the terms and conditions of one or more order forms to be executed between Kraftful and Customer (each, an “Order Form”). Customer shall use the Platform and the Documentation solely for its own internal business purposes and in accordance with the limitations, if any, set forth on an Order Form.
1.2 Modifications to the Platform. Kraftful may modify and/or update the Platform from time to time, so long as such modification(s) do not materially reduce the Platform’s performance or capabilities. Kraftful shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer, any of Customer’s authorized employees and personnel who are authorized to access the Platform and Documentation (“Authorized Users”), or any other third party may incur as a result of modifications to the Platform in accordance with this Section 1.2.
1.3. Platform Support. Kraftful will provide technical support to Customer via both telephone and email on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of federal holidays.
1.4 Additional Services. During the term hereof, Kraftful may agree to provide Customer with such additional services as are set forth on any Order Forms executed hereunder (the “AdditionalServices”). Except as specified herein or in an executed Order Form, nothing in this Agreement or in any Order Form shall be construed as a guarantee of Additional Services outside the scope of any executed Order Form.
2.1 Fees. In consideration for the grant of the License and the provision of the Platform and Additional Services (if any), Customer shall pay to Kraftful the fees set forth in the applicable Order Form (the “Fees”) in accordance with this Section 2. Any Fees expressed in a fixed monthly amount shall be prorated for any partial month of service based on the number of days the applicable Order Form was in effect during the month and the actual number of days in such month.
2.2 Invoices. Unless otherwise indicated on an Order Form, all invoices shall be due and payable within thirty (30) days of the date of the invoice.
2.3 Method of Payment. Unless Kraftful states otherwise in writing, all amounts due and payable hereunder shall be paid (a) in U.S. Dollars, and (b) by check or cash in immediately available funds to an account designated by Kraftful, by credit/debit card via an authorized Kraftful payment processor, or by any other method approved in writing by Kraftful.
2.4 Interest and Taxes. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by applicable law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for, and will pay all sales and similar taxes, and all similar fees levied upon the provision of the Platform and the Additional Services, excluding only taxes based solely on Kraftful’s income. Customer will indemnify and hold Kraftful harmless from and against any and all such taxes and related amounts levied upon the provision of the Platform and the Additional Services and any costs associated with the collection or withholding thereof, including penalties and interest.
3.1 Restrictions on Use of Platform. Except as expressly authorized by this Agreement, Customer may not: (a) modify, disclose, alter, translate or create derivative works of the Platform or the Documentation (or any components of the foregoing); (b) sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Platform or the Documentation (or any components of the foregoing); (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code, object code, or underlying structure, ideas, or algorithms of the Platform, in whole or in part; (d) use the Platform to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (e) use the Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Laws; (f) interfere with or disable any features, functionality, or security controls of the Platform or otherwise circumvent any protection mechanisms for the Platform; (g) copy, frame or mirror any part or content of the Platform; (h) build a competitive product or service, or copy any features or functions of the Platform; (i) interfere with or disrupt the integrity or performance of the Platform; (j) attempt to gain unauthorized access to the Platform or related systems or networks; (k) disclose to any third party any performance information or analysis relating to the Platform; (l) use the components of the Platform or allow the transfer, transmission, export or re-export of such software components or any portion thereof in violation of any export control Laws administered by the U.S. Commerce Department, OFAC, or any other government agency; (m) remove, alter or obscure any proprietary notices in or on the Platform, including any copyright notices, or (n) cause its personnel or any third party to do any of the foregoing. Customer will use its best efforts to prevent unauthorized access to, and use of, any passwords, and will immediately notify Kraftful in writing of any unauthorized use that comes to Customer’s attention. Notwithstanding anything to the contrary in this Agreement, Kraftful may temporarily suspend or permanently revoke Customer’s access to the Platform if Kraftful determines or reasonably suspects that Customer has or intends to violate, or has assisted others in violating or preparing to violate, any provision of this Section 3 (any such temporary suspension, a “Service Suspension” and any such revocation, a “Service Revocation”). Kraftful shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any third party may incur as a result of a Service Suspension or Service Revocation, and Client shall not be entitled to any refunds of any Fees on account of any Service Suspension or Service Revocation. Any breach by Customer of any provision of this Section 3 shall be a material breach.
3.2 Customer Responsibilities. Customer shall be solely responsible for: (a) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform and the Additional Services; (b) maintaining the security of Customer’s infrastructure, equipment, accounts, passwords (including but not limited to administrative and user passwords) and files; (c) providing Kraftful and its personnel with support and system access needed to perform the Additional Services; and (d) all acts and omissions of Authorized Users in connection with their use of the Platform and Additional Services. Customer acknowledges that each Authorized User’s use of the Platform is also subject to Kraftful’s Terms of Service and Privacy Policy, available at https://www.kraftful.com/legal.
3.3 Inappropriate and Illegal Content Prohibited. Customer agrees not to transmit any inappropriate content on the Platform including, but not limited to, libelous, defamatory, obscene, pornographic, abusive, or threatening content; content that advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; content that is misleading or not true; or advertise or otherwise solicits funds for goods or services. Kraftful may remove such content from Kraftful’s servers, and Kraftful may suspend or revoke Customer’s access to the Platform. Kraftful reserves the right to investigate, and seek applicable remedies for, violations of applicable law to the fullest extent of the law.
3.4 Customer’s Use of Others’ Intellectual Property. Customer may not upload, transmit, or otherwise distribute any information or content in violation of intellectual property laws or proprietary rights of any third parties. Customer shall be solely responsible for any violations of the foregoing, including any infringement of third party rights caused by any information that is generated or submitted through Customer’s use of the Platform. Kraftful reserves the right to suspend and/or revoke access to the Platform for any Authorized User who is found to have infringed on the intellectual property rights of Kraftful or third parties, or otherwise is found to have violated any intellectual property laws.
4.1 Definition. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on, or after the Effective Date) that is marked “Confidential” or “Proprietary” or with similar designation by the Disclosing Party, or that otherwise should reasonably be deemed to be confidential based on the context and nature of the information. Confidential Information includes, but is not limited to, computer programs in source and/or object code, technical drawings, algorithms, know-how, prototypes, models, samples, formulas, processes, ideas, inventions (whether patentable or not), discoveries, methods, strategies and techniques, research, development, design details and specifications, financial information, procurement and/or purchasing requirements, customer lists, information about investors, employees, business or contractual relationships, sales and merchandising data, business forecasts and marketing plans, and similar information.
4.2 Obligations. The Receiving Party shall maintain in confidence the Confidential Information during the term of this Agreement and for a period of five (5) years thereafter, and will not use such Confidential Information except as expressly permitted in this Agreement; provided, however, that any trade secrets shall be treated confidentially for so long as such information qualifies for protection as trade secret under applicable law. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement, and only if such directors, officers, employees and/or contractors are bound by confidentiality obligations with respect to such Confidential Information no less restrictive than the non-disclosure obligations contained in this Section 4.2. The Parties agree that Customer Data (as defined below) shall be considered Customer’s Confidential Information and the terms and conditions of this Agreement will be treated as Confidential Information of both Parties and will not be disclosed to any third party; provided, however, that each Party may disclose the terms and conditions of this Agreement (a) to such Party’s legal counsel, accountants, banks, financing sources and their advisors, (b) in connection with the enforcement of this Agreement or rights under this Agreement, or (c) in connection with an actual or proposed merger, acquisition, or similar transaction.
4.3 Exceptions. Notwithstanding anything to the contrary herein, Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement and through no fault of the Receiving Party (including, but not limited to, reviews of Customer’s products and/or services that are publicly available on the Apple App Store or elsewhere); (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by applicable Laws or by a subpoena or order issued by a court of competent jurisdiction or other governmental authority (each, an “Order”), but solely on the conditions that the Receiving Party, to the extent permitted by applicable Laws: (i) gives the Disclosing Party written notice of the Order promptly after receiving it; and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Order and seek a protective order or other appropriate relief. In the event of any dispute between the Parties as to whether specific information is within one or more of the exceptions set forth in this Section 4.3, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
4.4 Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
5.1 Generally. Except as specified in Section 5.3, no provision of this Agreement shall be construed as an assignment or transfer of ownership of any copyrights, patents, trade secrets, trademarks, or any other intellectual property rights (collectively, “Intellectual Property Rights”) from either Party to the other.
5.2 Platform and Additional Services. As between Kraftful and Customer, Kraftful shall own and retain all right, title and interest in and to: (a) the name, logo, trademarks, and service marks (collectively, “Marks”) associated with its business; (b) the Platform and the Documentation; (c) all improvements, enhancements and modifications to the Platform and the Documentation; (d) any work products or deliverables resulting from any Additional Services provided to Customer under this Agreement (except for any work products or deliverables that are expressly set forth in an Order Form to be owned by Customer); and (e) all Intellectual Property Rights related to any of the foregoing. Kraftful reserves all rights in and to the Platform and the Documentation not expressly granted to Customer in this Agreement. Except for the rights and licenses expressly granted in this Agreement, nothing in this Agreement grants to Customer or any third party, by implication, waiver, estoppel, or otherwise, any right, title, or interest in or to the Platform or the Documentation.
5.3 Feedback. If Customer or any of its Authorized Users submits written suggestions or recommended changes to the Platform or Additional Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, the “Feedback”), Kraftful is free to use such Feedback regardless of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Kraftful, on Customer’s behalf and on behalf of its Authorized Users and/or agents, all Intellectual Property Rights in and to the Feedback, for any purpose whatsoever, although Kraftful is not required to use any Feedback.
5.4 Use of Customer Marks. Customer shall own and retain all right, title and interest in and to the Marks relating to Customer’s business and all Intellectual Property Rights related thereto.
5.5 Publicity. The parties hereby grant each other a worldwide, non-exclusive, non-transferable, non-sublicenseable, limited license to their trademarks and logos solely to market the collaboration under this Agreement in publicity materials, including the parties’ websites and social media accounts.
6.1 Ownership of Customer Data. All Customer Data (as defined below) shall belong to Customer, provided that Kraftful shall have the right to access, use, and process such Customer Data to provide the Additional Services and the functionality of the Platform to Customer during the Term. Customer acknowledges and agrees that Customer is solely responsible for any and all Customer Data, including such Customer Data’s legality, reliability, and appropriateness. As used herein, “Customer Data” means data provided by Customer, including Employee Personal Data and Third Party Personal Data (as such terms are defined below). For the avoidance of doubt, “Customer Data” does not include data that Kraftful has access to without the assistance or efforts of Customer.
6.2 Anonymized Data. Customer acknowledges and agrees that Kraftful may anonymize and aggregate Customer Data in a manner that it can no longer reasonably be used to identify individuals (“Anonymized Data”). Customer grants Kraftful and its affiliates, an unlimited, perpetual, and irrevocable license to use the Anonymized Data for the purpose of improving the Platform and Additional Services, to understand and analyze trends across Kraftful’s customers, and for any other purpose.
6.3 Data Protection Measures. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Kraftful will implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risks. Such measures will include reasonable administrative, physical, and technical security controls that prevent the collection, use, disclosure, or access to Customer Data that this Agreement does not expressly authorize.
6.4 Employee and Third Party Data. Customer acknowledges that, as part of its use of the Platform, Customer may transmit personal data of Employees (“Employee Personal Data”) and personal data of third parties (“Third Party Personal Data”). To the extent Customer transmits or inputs any Employee Personal Data or Third Party Personal Data through or into the Platform, Customer represents and warrants that it has obtained all legally required consent to capture, collect, display, input, share and transmit such Employee Personal Data and Third Party Personal Data into and through the Platform.
7.1 Generally. Each Party represents and warrants that (a) it is validly existing and in good standing under the Laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms, except to the extent limited under Laws relating to insolvency, bankruptcy, and the like.
7.2 Kraftful’s Representations and Warranties. Kraftful represents and warrants that (a) the Platform will conform, in all material respects, to the Documentation and any other specifications set forth in the applicable Order Form, and (b) it will perform the Additional Services, if any, in a professional and workmanlike manner.
7.3 Customer’s Representations and Warranties. Customer represents and warrants that Customer: (a) will use the Platform and the Additional Services only in compliance with this Agreement and all applicable local, state, federal and international laws and regulations, rules, orders, and ordinances (collectively, “Laws”); and (b) shall not infringe upon any third party’s Intellectual Property Rights in its use of the Platform and the Additional Services.
7.4 Disclaimer. THE PLATFORM AND ADDITIONAL SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, KRAFTFUL DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE PLATFORM AND THE ADDITIONAL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT KRAFTFUL KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE.
8.1 Kraftful Indemnity. Kraftful, at its sole expense, will defend Customer and its affiliates, directors, officers, employees, and agents (“Customer Indemnitees”) from and against third-party claims, suits, actions or proceedings (each a “Claim”) and indemnify Customer from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) (collectively, “Losses”) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Kraftful to the extent arising from or relating to (a) a Claim that the Platform infringes the Intellectual Property Rights of any third party; or (b) any alleged or actual breach of Kraftful’s representations, warranties and obligations under this Agreement. In the event of a Claim pursuant to this Section 8.1(a), Kraftful may, at its option and expense (a) obtain for Customer the right to continue to exercise the rights granted to Customer under this Agreement; (b) substitute the allegedly infringing component for an equivalent non-infringing component; or (c) modify the Platform to make it non-infringing. If none of subparts (a), (b), or (c) in the foregoing sentence are obtainable on commercially reasonable terms, Kraftful may terminate this Agreement, effective immediately, by written notice to Customer. Upon a termination of this Agreement pursuant to this Section 8.1, Customer must cease using the Platform and Kraftful will refund the Fees Customer paid to Kraftful for the Platform adjusted pro-rata for any period during the term of this Agreement when the Platform was provided to Customer. Kraftful’s indemnification obligations under Section 8.1(a) do not extend to Claims arising from or relating to: (i) any negligent or willful misconduct of Customer Indemnitees; (ii) any combination of the Platform (or any portion thereof) by Customer Indemnitees with any equipment, software, data (including Customer Data) or any other materials not approved by Kraftful; (iii) any modification to the Platform by Customer Indemnitees not expressly authorized by Kraftful; (iv) the use of the Platform by Customer Indemnitees in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; (v) the continued use of the Platform after Kraftful has provided substantially equivalent non-infringing software or services; or (vi) any Customer services or products.
8.2 Customer Indemnity. Customer, at its sole expense, will defend Kraftful and its affiliates, directors, officers, employees, and agents (“Kraftful Indemnitees”) from and against any Claims and indemnify Kraftful Indemnitees from any related Losses to the extent arising from or relating to (a) any alleged or actual breach of Customer’s representations, warranties and obligations under this Agreement; and (b) any Claim by Customer’s employees, agents or customers related to the use of the Platform by Customer Indemnitees.
8.3 Procedures. The obligations of each Party to indemnify the other pursuant to this Section 8 are conditioned upon the indemnified Party: (a) giving prompt written notice of the Claim to the indemnifying Party once the indemnified Party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying Party will only alleviate an indemnifying Party’s obligations under Section 8 to the extent that any associated delay materially prejudices or impairs the defense of the related Claims); (b) granting the indemnifying Party the option to take sole control of the defense (including granting the indemnifying Party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified Party); and (c) providing reasonable cooperation to the indemnifying Party and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the Claim.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, (A) NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) EXCEPT FOR CUSTOMER’S OBLIGATION TO PAY THE FEES, A BREACH OF SECTION 4 (CONFIDENTIALITY) OR SECTION 5 (INTELLECTUAL PROPERTY RIGHTS), AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO KRAFTFUL DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDEING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY.
10.1 Term. This Agreement commences upon the Effective Date and continues in effect until the expiration of the period specified in the initial Order Form (the “Initial Term”). Thereafter, this Agreement shall automatically renew for additional periods of the same duration as the Initial Term (each, a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either Party opts out of an upcoming Renewal Term, in which case the Agreement will terminate upon the expiration of the then-current term.
10.2 Termination. Notwithstanding Section 10.1, either Party may terminate this Agreement as follows: (a) if the other Party materially breaches this Agreement (including, without limitation, in the case of Customer, nonpayment of the Fees) and does not remedy such failure within thirty (30) days after its receipt of written notice of such breach (unless the breach is of a nature that is incapable of being incurred, in which case the non-breaching Party may terminate this Agreement immediately upon written notice); or (b) if the other Party terminates its business activities or becomes insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.
10.3 Effect of Termination. Upon any termination of this Agreement: (a) the License and any other rights granted to Customer under this Agreement with respect to the Platform and the Additional Services will immediately cease, (b) Customer shall immediately pay to Kraftful all amounts due and payable up to and through the effective date of termination, (c) except for a termination by Customer pursuant to Section 10.2(a), Kraftful shall have no obligation to refund any prepaid Fees, and (d) the Receiving Party will, at the option of the Disclosing Party, promptly return to the Disclosing Party or destroy all Confidential Information of Disclosing Party then in the Receiving Party’s possession. Notwithstanding any terms to the contrary in this Agreement, any provision of this Agreement that, by its nature and context, is intended to survive this Agreement (including, without limitation, Customer’s obligation to pay any unpaid Fees and Sections 4 through 6, 7.4, and 8 through 11) will survive any termination of this Agreement.
11.1 Entire Agreement. This Agreement, including all exhibits to this Agreement, all of which are incorporated herein by reference, sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom.
11.2 Independent Contractors. Neither Party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other Party, and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
11.3 Dispute Resolution. The Parties agree to resolve any dispute, claim or controversy arising out of or relating to this Agreement according to the terms of this Section 11.3. First, the Parties agree to attempt in good faith to resolve the dispute through informal resolution. Second, if the dispute is not resolved through informal resolution, the Parties agree to participate in binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in San Francisco, California. The Parties agree that, in the event of arbitration (or in the event of a lawsuit if this arbitration clause is deemed invalid or does not apply to a given dispute) the prevailing Party shall be entitled to costs and fees (including reasonable attorneys’ fees). Either Party may bring a lawsuit solely for injunctive relief without first engaging in the dispute resolution process described in this Section 11.3. In the event that the dispute resolution procedures in this Section 11.3 are found not to apply to a given claim, or in the event of a claim for injunctive relief as specified in the previous sentence, the Parties agree that any judicial proceeding will be brought in the state courts of San Francisco, California. Both Parties consent to venue and personal jurisdiction there. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS AGREED TO OTHERWISE BY THE PARTIES, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS.
11.4 Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.
11.5 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by either Party, by operation of applicable Laws or otherwise, without the prior written consent of other Party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, either Party may assign its rights and obligations hereunder in connection with a merger, reorganization, consolidation, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will be binding upon, and will inure to the benefit of, the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.
11.6 Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a Party unless in writing and signed by a duly authorized representative of each Party. No failure or delay (in whole or in part) on the part of a Party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by applicable Laws. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
11.7 Notices. Any notice made pursuant to this Agreement will be in writing and will be deemed delivered on (a) the date of delivery if delivered personally, (b) five (5) calendar days (or upon written confirmed receipt) after mailing if duly deposited in registered or certified mail or express commercial carrier, or (c) one (1) calendar (or upon written confirmed receipt) after being sent by email, addressed to Customer or to Kraftful, as the case may be, at the address or email address shown on the signature page of this Agreement or to such other address or email address as may be hereafter designated by either Party. Any notice to Customer pertaining to an Order Form may be made by Kraftful to the contact listed by Customer for such purpose in the applicable Order Form.
11.8 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
11.9 Counterparts. This Agreement may be executed: (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (b) by the Parties by exchange of signature pages by mail, facsimile or email (if email, signatures in Adobe PDF or similar format).
11.10 Force Majeure. Neither Party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, natural disasters (fire, storm, floods, earthquakes, etc.), a pandemic, acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any third party services, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.
11.11 Construction. This Agreement shall be deemed to be the product of all of the Parties, and no ambiguity shall be construed in favor of or against any one of the Parties.
