Terms and Conditions
By executing a Service Agreement that incorporates by reference this Agreement, by clicking âI Acceptâ or âI Agreeâ on any electronic version of this Agreement or by otherwise accessing or using any Service, you agree to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms "you" or "your" shall refer to such entity. If you do not have such authority, or if you do not agree with the terms and conditions of this Agreement, you must not accept this Agreement and you may not use the Services. You may not access the Services if you or your users are our competitors, except with our prior written consent.
1. TERM This Agreement shall commence on the Effective Date and continue for a period of twelve (12) months ("Term"). During the Term, the Customer may choose to upgrade their services at any time. Upon thirty (30) days' written notice prior to the end of the Term, the Customer may choose to downgrade or cancel their services with Coalmarch. The Term will automatically renew for successive twelve (12) month periods unless either party provides thirty (30) days' written notice of termination before the end of the current Term. Any changes to the service level must be communicated in writing prior to the end of the Term.
2. SERVICES Coalmarch shall provide digital marketing services to the Customer as described in Exhibit A ("Statement of Work").
3. COMPENSATION AND MONTHLY FEES Customer agrees to pay Coalmarch the fees outlined in Exhibit A. Pricing shall increase annually by five percent (5%). The Customer will not receive advance notice of renewal or the annual five percent (5%) price increase. These fees shall be billed monthly and are subject to the terms outlined in this Agreement.
4. MARKET EXCLUSIVITY Customer acknowledges that Coalmarch retains the right to provide similar services to competing businesses within Customerâs service area throughout the duration of this Agreement. No market exclusivity is granted under this Agreement.
5. PAID ADVERTISING / MANAGEMENT CHARGE If Customer opts for Paid Advertising, there will be additional charges for Paid Advertising spend on third-party platforms, including but not limited to, Google Ads, Microsoft Advertising (Bing), Yelp, Local Services by Google, Facebook Ads, and Nextdoor (the "Paid Advertising Monthly Advertising Spend"). The Paid Advertising Monthly Advertising Spend will be a pass-through charge and the responsibility of the Customer to pay. A Monthly Paid Advertising Management Charge Percentage Fee of 20% (twenty percent) will be calculated based on the Paid Advertising Monthly Advertising Spend and included as a separate charge each month (known as the "Monthly Paid Advertising Management Charge Percentage Fee").
6. ADDITIONAL SERVICES CHARGE Coalmarch will charge $150.00 per hour for Additional Services provided outside of Exhibit A and may surcharge more than that rate for additional services that require completion within 24 hours (the "Additional Service Charge").
7. LACK OF COMMUNICATION Services will continue to be charged regardless of any delays incurred as a result of a lack of communication by the Customer. Customer is required to respond to requests via email, or phone, within three (3) Business Days of submission to maintain project schedule. Coalmarch will respond to any communication and/or requests within two (2) Business Days of submission by Customer.
8. THIRD-PARTY INTEGRATIONS Services related to website development and maintenance are subject to an approved list of third-party vendors. Should Customer want to utilize a third-party vendor on their website, they must contact Coalmarch to confirm the approved third-party vendor list before moving forward.
9. OWNERSHIP OF WEBSITE Upon full completion of the Term and payment of all outstanding balances, ownership of the website developed and managed under this Agreement, shall transfer via a tarball to the Customer minus the following items: webform integrations with Pestpac, SalesCenter, and Service Assistant, Anti-Spam Module, Google Business Profile Reviews Connection, Stock Images, and Mailgun Integration. Prior to the completion of the Term, all website assets remain the property of Coalmarch. Additional âTransfer Feesâ may apply.Â
10. EARLY TERMINATION Either party may terminate this Agreement upon thirty (30) days written notice for material breach, provided the breaching party fails to cure such breach within the notice period. If terminated prior to the initial full Term, Customer forfeits ownership rights to the website.
11. CONFIDENTIALITY Both parties agree to maintain the confidentiality of proprietary or sensitive information exchanged under this Agreement.
12. LIABILITY LIMITATIONS Coalmarch shall not be liable for any indirect, incidental, or consequential damages arising out of the services provided under this Agreement.
13. GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the state of Delaware
14. Definitions.
14.1 "Affiliates" refers to any entity that directly or indirectly controls, is controlled by, or is under common control with the specified company. For the purposes of this definition, "control" means the direct or indirect ownership or control of more than 50% of the voting interests of the entity.
14.2 "API" refers to any application programming interface that Company or any of its Affiliates makes available to you to enable integration or interaction with our systems.
14.3 "Marketing Services" means the various marketing-related services provided by us as outlined in the applicable Service Agreement. These services may include, but are not limited to, website design and hosting, search engine optimization (SEO), search engine marketing (SEM), digital advertising, social media marketing, and content creation.
14.4 "Professional Services" refers to any training, consultation, marketing-related services, support, or other professional services provided by us under the terms of the applicable Service Agreement.
14.5 "Service Agreement" means the document (such as an ordering agreement, statement of work, scope of work, or purchase order) executed by both parties that outlines the specific services, products, and terms to be provided by us to you or through an authorized reseller or partner.
14.6 "Service(s)" means the Marketing Services to be provided by us to you pursuant to an applicable Order Form, including, without limitation, search engine marketing, pay-per-click, display, tracking services, live chat services, website development and hosting, search engine optimization, reviews services, any Creative Services, and such other marketing-related services as may be specified in an applicable Order Form from time to time. In addition, Services may include access to our software products and related consulting services if set forth in an applicable Order Form.
14.7 "Software Products" means the object code version of software applications or solutions provided by us, which may be made available for your use either as standalone products or with Services, including Marketing Services and Website hosting, as specified in the Service Agreement.
14.8 âSubscription Services" refers to proprietary solutions or software products provided by us to you on a subscription basis, including software-as-a-service (SaaS) offerings or web-based applications, as described in the Service Agreement.
14.9 "Subscription Term" means the period during which you have access to the Subscription Services as defined in the Service Agreement, including any renewal periods. For Hardware, the Subscription Term refers to the rental or lease period specified in the Service Agreement.
14.10 "Supplemental Terms" has the meaning given in Section 2.
14.11"Third-Party Content" and "Third-Party Services" refer to content or services provided by third parties, as described in Section 2.4.
14.13 "Users" refers to your employees, authorized contractors, or end users permitted by you to use the Services in accordance with this Agreement and the applicable Service Agreement. Competitors may not be designated as Users without our prior written consent.
14.14 "Work Product" means all deliverables, inventions, reports, designs, developments, processes, techniques, improvements, or other work product, whether or not copyrightable or patentable, that are developed, conceived, or created by us in connection with the provision of Professional Services, either alone or in collaboration with you or others.
14.15 "Your Applications" refers to any web applications created by you using our APIs, which may interact with or be integrated into our services.
14.16 "Your Content" means all content and materials provided by you or your Users, including text, files, images, graphics, data, software, audio, video, photographs, web applications, or any other materials that reside in or run on or through the Services, including Your Applications.
14.17 "Creative Services" means the graphic design or other marketing-related professional services that may be provided by us pursuant to an applicable Order Form. For avoidance of doubt, the term Creative Services as used herein shall not include website design services, which are the subject of specific Supplemental Terms.
14.18 "Our Marks" means CoalmarchÂŽ and other trade names, trademarks, trade symbols, service marks, logos, and proprietary marks owned by us.
14.19 "Work Product" means any works (copyrightable or not, patentable or not), products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques, modifications and know-how made, conceived, reduced to practice or learned by us (either alone or jointly with you or others) that result from or arise out of any Services performed by us, or our designee, and provided to you pursuant to any applicable Order Form.
15. Services.
15.1. Subscription Services. Subject to the performance of your obligations under this Agreement and the applicable Service Agreement, (a) we will provide the Subscription Services specified in the Service Agreement in accordance with the terms outlined here for the applicable Subscription Term set forth in such Service Agreement, and (b) you are granted a non-exclusive, non-assignable, royalty-free, worldwide, and limited right to access and use the Subscription Services solely for your internal business operations during the Subscription Term.
The usage of the Subscription Services is subject to the limitations outlined in the Service Agreement, which may include, but are not limited to, restrictions on the scope, amount, or type of services provided. These limitations may include, but are not limited to, the number of service requests, the number of locations, or other metrics that define the usage or consumption of services.
If the Service Agreement specifies any such limits, you acknowledge that you will adhere to these restrictions, and the Subscription Services will be provided within those defined parameters. We reserve the right to modify or update the scope of services, including any limitations on usage, upon reasonable notice to you.
15.2. Third-Party Content and Third-Party Services.
15.2.1 You acknowledge that certain content or resources that are accessible through the Subscription Services may be provided by third parties (âThird-Party Contentâ). We do not endorse, control, or assume responsibility for the accuracy, availability, or content of such Third-Party Content. You are solely responsible for your use of any Third-Party Content. If we are notified that any Third-Party Content violates applicable law or infringes third-party rights, you agree to promptly remove such content upon notice from us, or we may remove it at our discretion. We are not responsible for ensuring that you have the necessary licenses for such Third-Party Content unless otherwise specified in the Service Agreement. The ownership and intellectual property rights of any Third-Party Content remain with its respective third-party owner.
15.2.2 Additionally, certain third-party services or applications, including but not limited to add-ons, tools, and enhancements (âThird-Party Servicesâ), may be made available to you as part of the Subscription Services. If you choose to use these Third-Party Services, you acknowledge that we may allow such third-party services to access your content as required for their integration with the Subscription Services. Your use of Third-Party Services is governed by the terms and conditions set by the third-party provider. We confirm that we have the right to provide these Third-Party Services as part of the Subscription Services but are not responsible for any changes, modifications, or deletions to your content caused by the use of these third-party services. We are not liable for the continued availability of any Third-Party Services and may discontinue offering them without liability. The third-party provider retains all ownership and intellectual property rights related to the Third-Party Services.
15.2.3 We are not responsible for the performance, security, or availability of Third-Party Services or Third-Party Content. You assume all risks associated with accessing and using such services or content. If your applications include third-party programs, you acknowledge that we may allow providers of those programs to access the Subscription Services as necessary for the integration of those programs with our services. We will not be responsible for any impact on your content or applications resulting from this access or integration.
15.3 Service Availability. We will use commercially reasonable efforts to ensure the availability of the Service during the Subscription Term. However, you acknowledge that we do not guarantee uninterrupted access, and the Service may be temporarily unavailable due to both scheduled and emergency updates or maintenance. We will make reasonable efforts to notify you in advance, through the Service or other communication channels, of the time, date, and expected duration of any planned downtime. Certain Services may be subject to additional service level agreements (SLAs), which will be specified in your Service Agreement.
15.4 Competing Services. You agree that during the period in which we are providing you access to our Services under the Service Agreement and for one (1) year thereafter, you will not develop, offer, or assist any third party in developing a commercially available product or service that competes with our Services.
16. Your Content.
16.1. Your Content; Aggregated Data. Except as specified in this Agreement or an applicable Service Agreement, we acknowledge that you own all rights, title, and interest in Your Content. You grant us a non-exclusive, royalty-free, worldwide, and limited right to access, copy, store, record, process, transmit, display, view, print, or otherwise use Your Content (âContent Rightsâ) solely to provide the Services to you, maintain, analyze, and improve the Services, respond to service or technical issues, confirm or enforce compliance with this Agreement, resolve disputes, or comply with applicable law.
Additionally, we may use these Content Rights for purposes such as benchmarking, data analysis, enrichment, or providing additional services, provided that all data is anonymized and cannot identify you. In this context, we may process Your Content through third-party applications, including artificial intelligence platforms or data processing services.
You are solely responsible for the accuracy, quality, integrity, reliability, legality, and ownership of Your Content. Notwithstanding any other provision in this Agreement, you agree that we may collect certain data points, including user registration and statistical data, for our own internal purposes, such as benchmarking, transactional analysis, usage patterns, activity levels, and other performance metrics. This data will be in aggregate form, anonymized, and will not include personal data or identify you individually (the "Aggregated Data"). You agree that all such Aggregated Data is owned by us.
16.2. Control of Your Content. You retain control over the inclusion and amount of Your Content stored in our Software Products and accessed through the Services. You can access Your Content at any time through the Services. You have the ability to modify, amend, add to, or delete any part of Your Content directly within the Services.
You acknowledge and agree that we are not responsible for the loss of Your Content. If you request the removal of any part of Your Content, we will assist you within a reasonable timeframe, subject to applicable fees and any retention obligations set forth in Section 8.5. In the event you request customer support that requires us to access your database, you authorize us to access your login credentials and database as necessary to provide such support.
17. Trademarks and Publicity.
17.1. Our Marks. CoalmarchÂŽ and the other trademarks, trade names, service marks, and logos associated with the Services or parts thereof (collectively, âOur Marksâ) are owned by us. Names, logos, and marks related to third-party products incorporated in or made available through the Services are owned by their respective owners. You are granted a non-exclusive, non-assignable, royalty-free, worldwide limited right to use Our Marks and any such third-party marks solely to the extent such marks are incorporated into the Service, and solely as part of your use of the Service. In the case of third-party marks, such use is further subject to the terms of any third-party license you may enter into in connection with your use of such third-party products. Any and all goodwill associated with your right to use Our Marks hereunder automatically vests in us.
17.2. Your Marks; Publicity. During the Subscription Term, you agree that we may refer to you as a customer and grant us the right to use your name, trademarks, trade names, trade symbols, and logos (collectively, âYour Marksâ) in connection with the marketing and promotion of the Services or parts thereof, including on our website or otherwise. We will use Your Marks in accordance with any published guidelines that you provide to us regarding such use. Any and all goodwill associated with our right to use Your Marks hereunder automatically vests in you.
18. Fees and Invoicing.
18.1. Fees; Expenses. You agree to pay all fees specified in your Service Agreement(s). Except as otherwise specified herein or in an applicable Service Agreement: (a) fees are based on Services purchased, not actual usage; (b) payment obligations are non-cancelable, and fees paid are non-refundable, regardless of whether you have prepaid for any portion of the Service; and (c) quantities purchased cannot be decreased during the relevant Subscription Term. If you elect to pay by credit card for the Services, you agree to pay any credit card processing fees that we incur as a result, which we will disclose to you prior to payment, subject to applicable state laws and credit card network rules. These fees do not apply to payments made via ACH or other accepted payment methods. Credit card processing fees are separate from any other administrative, service, or tax-related charges and are non-refundable, even in the case of a refund or cancellation of services.
18.2. Invoicing and Payment.
18.2.1. You will provide us with valid and updated credit card information (or other payment arrangements acceptable to us). If you provide credit card information, you authorize us to charge the credit card for all Services listed in the Service Agreement for the applicable Subscription Term. Unless otherwise stated in the Service Agreement, such charges will be made in advance according to the billing frequency stated in the Service Agreement. If we have accepted payment by a method other than credit card, we will invoice you in advance or otherwise according to the relevant Service Agreement. If we accept payment by a method other than credit card or another automatic payment method, we reserve the right to invoice you and charge a handling fee of $25.00 per transaction. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information. All fees or other amounts payable to us shall be paid in United States dollars unless otherwise agreed to in writing or set forth in the applicable Service Agreement.
18.2.2. Unless otherwise stated in the Service Agreement, invoiced charges are due upon receipt. Unless otherwise stated in the Service Agreement, upfront billing consists of any one-time initial fees and/or the initial month of recurring billing for Services. Any one-time initial fees and/or the initial month of recurring billing will be invoiced and charged upon execution of the applicable Service Agreement. If the Service Agreement affects pricing related to any prior orders or agreements, such adjustments will be accounted for upon execution of the Service Agreement.
18.2.3. If you purchase two or more Services that comprise a bundle and are priced as a bundle (rather than as individual Services), and you decide not to use one or more Services in the bundle, or if you fail to provide content or anything else necessary to activate or perform one or more Services in the bundle, we may either charge you the full bundle price or charge for the individual Services on a non-discounted basis.
18.3. Overdue Payments.
18.3.1. If any invoiced amount is not received within thirty (30) days following the due date, then, without limiting our rights or remedies, we may: (a) charge interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; (b) accelerate your unpaid fee obligations under the remainder of the Subscription Term for the applicable Service, making all such obligations immediately due and payable; and (c) condition future subscription renewals, increases in service levels, quantities, or Service Agreements on receipt of all outstanding amounts, along with any reasonable reactivation fees. You agree that we may collect any amounts due pursuant to this paragraph by charging your credit card or by separate invoice without further authorization from you.
18.3.2. You agree to bear any and all costs of collection incurred by us as a result of your late payment or nonpayment, including, without limitation, all reasonable attorneysâ fees and expenses, insufficient funds charges, and any collection agency fees we incur, unless prohibited by law. Additionally, if you dispute a credit card charge with your bank or credit card company and we receive a "chargeback" or other penalty fee, you agree to reimburse us for such chargeback or fee, except to the extent such chargeback or penalty fee resulted from our material, uncured breach of this Agreement. You agree that we may collect any such costs, chargeback, or penalty fees by charging your credit card during the next payment cycle or by separate invoice without further authorization from you. You will not be required to reimburse such chargeback or penalty fee if we have materially breached the terms of the Service Agreement or this Agreement, or if we have made an error in invoicing with respect to the disputed payment. However, if you assert that we have materially breached the Service Agreement or this Agreement, you must provide written notice of such alleged breach at least ten days prior to the charge date, detailing the basis for the breach and giving us an opportunity to cure it.
18.4. Taxes. Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, âTaxesâ). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 5.4, we will invoice you for those amounts, and you will pay them unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property, and employees.
19. Warranty; Indemnification; Limitations of Liability.
19.1. Warranty. We warrant that Services relating to the use of our Software Products will perform in all material respects as described in our published documentation and service descriptions. If Services relating to the use of our Software Products are not performed as warranted, you must promptly provide written notice to us that describes the deficiency in the Services.
19.2. Disclaimer of Warranties. WE PROVIDE ALL SERVICES PERFORMED HEREUNDER ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. WE DO NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT WE WILL CORRECT ALL SERVICE ERRORS, (B) THE SERVICE WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY US, AND (C) THE SERVICE WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT WE DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. ANY BENCHMARK DATA OR BENCHMARK REPORTS ARE PROVIDED âAS ISâ AND WE SHALL HAVE NO LIABILITY WITH REGARD TO THEIR ACCURACY, CURRENTNESS, OR COMPLETENESS. WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT, YOUR APPLICATIONS, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY CONTENT. WE DO NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT, AND WE DISCLAIM ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT. YOU ACKNOWLEDGE THAT WE MAY MAKE CHANGES OR UPDATES TO THE SERVICES OVER THE COURSE OF AN APPLICABLE TERM. WE DO NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED ON OR THROUGH THE SERVICES OR ANY LINKED WEBSITE, AND WE MAKE NO GUARANTEE WITH RESPECT TO THE PERFORMANCE OR PLACEMENT OF ANY ADS OR CAMPAIGNS PLACED OR RUN AS PART OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT WE MAKE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
19.3. Exclusive Remedy. FOR ANY BREACH OF WARRANTY, YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY. IF WE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU OR WE MAY TERMINATE THE DEFICIENT SERVICES AND WE WILL REFUND TO YOU THE FEES FOR THE TERMINATED SERVICES THAT YOU PRE-PAID TO US FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION. TO THE EXTENT NOT PROHIBITED BY LAW, THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE, AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS, OR ENVIRONMENTS, OR FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
19.4. Indemnification.
19.4.1. You shall indemnify, defend, and hold us and our officers, directors, employees, and agents harmless from and against any and all third-party claims of loss, damages, liability, costs, and expenses (including reasonable attorneysâ fees) arising out of or resulting from: (a) Your Content; (b) your gross negligence or willful misconduct; (c) any breach by you of any representation, warranty, covenant, or other obligation contained in this Agreement or any Supplemental Terms; (d) your violation of applicable law; or (e) a claim relating to any service offered by you to third parties.
19.4.2. We shall indemnify, defend, and hold you harmless from any claim, suit, or proceeding brought against you to the extent it is based on a third-party claim that the Services supplied by us infringe a copyright or a patent issued in the country of your use of Services as of the effective date of this Agreement, provided that we will have no indemnity obligation or other liability hereunder to the extent arising from: (a) your negligence, breach of this Agreement or alteration of the Services as provided by us; (b) Your Content or information, data, or material not furnished by us; or (c) any third-party products, content, or services. If such a claim is or is likely to be made, we may, at our own expense and sole discretion, exercise one or more of the following remedies: (i) obtain for you the right to continue to use the Services consistent with this Agreement; (ii) modify the Services so they are non-infringing and in compliance with this Agreement; or (iii) terminate the applicable Services without liability for such termination other than the ongoing indemnity obligation hereunder. The foregoing states our entire obligation, and your exclusive remedy, with respect to any claim, suit, or proceeding related to infringement of proprietary rights.
19.4.3. The party claiming indemnification shall: (a) notify the indemnifying party of any claim in respect of which the indemnity may apply; (b) relinquish control of the defense of the claim to the indemnifying party; and (c) provide the indemnifying party with all assistance reasonably requested in defense of the claim. The indemnifying party shall be entitled to settle any claim without the written consent of the indemnified party so long as such settlement only involves the payment of money by the indemnifying party and in no way affects any rights of the indemnified party.
19.5. Limitation of Liability. IN NO EVENT SHALL WE, OUR AGENTS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION, COSTS RELATED TO DELAYS, INTERRUPTIONS, NON-DELIVERY, OR DEFECTS IN THE TRANSMISSION OF DATA, COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES, COST OF COVER, OR ANY USE OR INABILITY TO USE THE HARDWARE, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY ARISING OUT OF THE USE, OPERATION, OR ACCESS TO THE SOFTWARE PRODUCTS EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OR PRIOR OCCURRENCE OF SUCH DAMAGES OR IF SUCH DAMAGES WERE OTHERWISE REASONABLY FORESEEABLE. THE LIMITATIONS SET FORTH HEREIN SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. OUR MAXIMUM CUMULATIVE LIABILITY FOR DIRECT, ACTUAL, AND PROVABLE DAMAGES RELATING TO OR ARISING OUT OF YOUR USE OF ANY SERVICE (REGARDLESS OF THE FORM OF ACTION) SHALL NOT EXCEED THE AMOUNT OF FEES PAID UNDER THE APPLICABLE SERVICE AGREEMENT FOR SUCH SERVICE DURING THE PRIOR TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS SECTION 6.5 SHALL NOT APPLY TO YOUR BREACH OF SECTION 2.5 (YOUR RESPONSIBILITIES) OR A PARTYâS OBLIGATIONS UNDER SECTION 6.4 (INDEMNIFICATION).
20. Severability and Waivers. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. No failure or delay by either party in exercising any right under any provision of this Agreement or any Order Form will constitute a waiver of that right.
21. Amendments. You acknowledge that the marketing and digital services industries are continually evolving and changing, and you agree that we have the right to establish terms for the continued use of any of our services. Accordingly, we reserve the right to modify the terms of this Agreement (including any Supplemental Terms) from time to time with or without notice to you. Your continued use of the services constitutes agreement to any such modification. You may not modify or amend this Agreement without our prior written consent.
22. Assignment and No Third-Party Beneficiaries; Subcontractors. You may not assign this Agreement, by operation of law or otherwise, without our prior express written consent. This Agreement inures to the benefit of and is binding upon the parties, and their permitted successors, assigns, and legal representatives. No other person has any right, interest, or claim in, or is entitled to any benefits under, this Agreement as a third-party beneficiary or otherwise. We may subcontract any of our obligations under this Agreement to any third party; provided, however, that we will be responsible for the performance of any such subcontractor and their compliance with our obligations as required under this Agreement.
23. Relationship of the Parties. The parties are independent contractors, and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
24. Governing Law and Venue. The Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. The parties agree that the sole venue and jurisdiction for disputes arising from the Agreement shall be the appropriate state or federal court located in Wilmington, Delaware, and each party agrees not to object to venue based on forum non conveniens or any other basis. As an exception to the foregoing, if your primary place of business is within the European Economic Area and its member states, Switzerland, or the United Kingdom, then this Agreement is and shall be governed by, construed and enforced solely in accordance with the laws of England and Wales and the parties agree that in any dispute exclusive jurisdiction and venue must be in the courts of England and Wales. Each party waives any right they may have to participate in any class, group, or representative proceeding, and waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. The parties acknowledge and agree that neither the Uniform Computer Information Transactions Act nor the United Nations Convention for the International Sale of Goods shall apply to this Agreement.
25. Force Majeure. Neither of us shall be responsible for failure or delay of performance if caused by an act of war, act of terrorism, sabotage, act of God, electrical, internet, or telecommunication outage, government restrictions (including the denial or cancellation of any export, import, or other license), or other event outside the reasonable control of the obligated party, provided that such failure or delay shall be excused only for so long as the affected party is using reasonable efforts to cure, correct, and/or mitigate the effect of a force majeure event.
26. CTIA/10DLC Compliance. The Telephone Consumer Protection Act (TCPA) requires that any businesses employing Coalmarch's opt-in texting feature comply with 10DLC Policy and Consent Requirements for collecting, using, and disclosing personal information about their customers, prospective customers, and visitors to their websites managed by Coalmarch. If your website includes texting "opt-in" options, you, as a Coalmarch client, agree to clearly state a texting disclaimer on your site communicating the use of collecting personal information directly from your customers through webforms or scheduling service. Personal information collected directly from you, the client, in this way may include first and last name, address, email address, and phone number. This information can be used by only you, the client, and must comply with sending only text messages and emails from you, the client, regarding appointment reminders, account notifications, marketing, etc. Message frequency varies. Message and data rates may apply. You must adhere to the request commands of the customer for START, STOP, CANCEL, or HELP.Â