Effective Date: May 27, 2025
This Customer Subscription Agreement (this “Agreement”) constitutes a legally binding agreement between Tizra Inc., a Delaware corporation (“Tizra”) and the customer that executes or otherwise enters into the applicable Order in which this Agreement is referenced (“Customer”). This Agreement governs Customer’s access to and use of the Hosted Services (as defined herein) and any related services or products provided by Tizra. This Agreement is subject to change at any time, effective upon reasonable notice to Customer. The most current version of this Agreement, which supersedes all previous versions, can be reviewed by going to https://support.tizra.com/tizra-terms-of-use/.
THIS AGREEMENT TAKES EFFECT UPON THE EARLIEST OF CUSTOMER’S EXECUTION OR ACCEPTANCE OF AN ORDER (AS DEFINED HEREIN), USE OF THE HOSTED SERVICES, OR INDICATION OF ACCEPTANCE OF THIS AGREEMENT BY CLICKING AN “ACCEPT” BUTTON OR A SIMILAR AFFIRMATIVE ACKNOWLEDGEMENT. BY ACCEPTING THIS AGREEMENT YOU: (A) ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS HEREIN; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER; AND (C) CUSTOMER ACCEPTS THIS AGREEMENT AND AGREES TO BE LEGALLY BOUND BY ITS TERMS.
IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE HOSTED SERVICES. Please read this Agreement carefully before accepting any Order or commencing use of the Hosted Services. We encourage you to retain a copy of this Agreement for your records.
1 Definitions. Capitalized terms used in this Agreement and not otherwise defined herein have the meanings set forth in below.
“Applicable Data Privacy Laws” means any applicable federal, state, or international laws and regulations relating to the processing or privacy of Personal Information.
“Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) disclosed, whether directly or incidentally, by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that reasonably should be considered confidential based on the nature of the information and the circumstances of disclosure, including without limitation, trade secrets, technology, information pertaining to business operations, strategies, customers, pricing and marketing, and the terms and existence of this Agreement. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from or on behalf of the Disclosing Party; (b) was or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, Receiving Party or any of its Representatives; (c) was received by Receiving Party from a third party who was not, at the time, under any obligation to Disclosing Party or any third party to maintain the confidentiality of such information; or (d) was or is independently developed by Receiving Party without reference to or use of any of Disclosing Party’s Confidential Information.
“Customer Content” means Published Content and any other text, graphic, audio, audiovisual content, photos, music, sound effects, narration, video, interface layouts and designs, and any other content uploaded to the Hosted Applications or the Customer Publishing Website, or otherwise supplied by or on behalf of Customer or any End Users for use in connection with the Customer Publishing Website, including, without limitation, for the customization, operation, or look and feel of the Customer Publishing Website, whether or not the same are (a) owned by Customer, an End User, a third party, or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights.
“Customer Publishing Website” means a Customer website hosted by Tizra and designed and customized by Customer (using the Hosted Applications) or by Tizra in accordance with Customer’s instructions, which, among other things, provides End Users access to Published Content.
“End User” means any user of the Customer Publishing Website (other than the Parties hereto and Permitted Users), including the customers of Customer.
“End User Data” shall mean data inputted by End Users into the Customer Publishing Website, or information related to End Users that is otherwise provided or made available to Tizra by or on behalf of Customer for use with the Tizra Software, including but not limited to data regarding customers or potential customers.
“End User Publishing Transaction” means any purchase by an End User of access to or a copy of Published Content.
“Harmful Code” means any: (a) virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; or (b) time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any Person, or otherwise deprive Customer of its lawful right to use such computer program.
“Hosted Services” means the website hosting and related services set forth in Section 2 and described more fully in an applicable Order.
“Hosted Applications” means the Tizra proprietary website interface design and publishing applications, which Customer may use to design, customize, manage, and update the Customer Publishing Website on an ongoing basis during the Term.
“Intellectual Property 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.
“Order” means the invoice, proposal, purchase order, order form or other ordering schedule or document under which the Customer accepts the purchase of Services pursuant to the terms of this Agreement.
“Permitted User” any Representative of Customer, who has been authorized by Customer to use and access the Hosted Applications and who has been provided a username and password by Customer for use when accessing such Hosted Services.
“Personal Information” means information processed by Tizra for or at the direction of Customer, that: (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in Tizra’s possession or control or that the Tizra is likely to have access to, or (b) is otherwise defined as protected personal information pursuant to Applicable Data Privacy Laws.
“Published Content” means any text, graphic, or other content uploaded or supplied by or on behalf of Customer for access or downloading by End Users on the Customer Publishing Website.
“Representatives” means a Party’s employees, officers, agents, and subcontractors.
“Security Incident” means any act or omission that compromises the security, confidentiality, or integrity of Personal Information or the physical, technical, administrative, or organizational safeguards put in place to protect Personal Information.
“Term”, “Initial Term”, “Renewal Term”, and “Renewal Date” shall have the meanings set forth in Section 5.1.
“Tizra Hosting Environment” shall mean all servers, server software, hosting platforms, storage space, telecommunications connectivity and equipment, including the Tizra Software, and other hardware, software, technology, and other materials Tizra is required to, or otherwise does use, provide, or provide access to as part of the Hosting Services, on which Tizra maintains an executing instance of the Hosted Applications and Customer Publishing Website.
“Tizra Software” means the Hosted Applications and all publishing, and other software used by Tizra in operation of the Customer Publishing Website, but excluding any Customer Content and End User Data uploaded on to the Customer Publishing Website by or on behalf of Customer or an End User.
“Usage Data” means any information regarding access to or use of the Hosted Services or Tizra Software, including the Customer Publishing Website, or any features or functionality of the foregoing, including information that is collected automatically through cookies or other tracking technology, whether or not such information does or is capable of identifying a single user, account, device, or organization.
2 Hosted Web Application Services.
2.1 Hosted Services. Tizra shall, during the Term,
(a) provide Permitted Users remote access, via the Internet and a web browser interface, to an executing instance of the Hosted Applications operating on and from a Tizra Hosting Environment;
(b) allow Permitted Users, through use of such Hosted Applications, to customize and modify the Customer Publishing Website, including by adding and removing from time to time Customer Content and End User Data;
(c) host the Customer Publishing Website (including the authorized portions of Customer Content and End User Data) on a Tizra Hosting Environment for Internet access by End Users.
(d) enable Customer to perform e-commerce transactions on the Customer Publishing Website with respect to Published Content, utilizing the functionality of the Tizra Software.
2.2 Back-ups. During the Term, Tizra or its subcontractors will regularly perform backups of Customer Content files under its control and will securely store and retain backups for a period of time as may be required by law. Such backups provided for herein should not be considered a replacement for Customer having appropriate disaster or business recovery plans.
2.3 Permitted Use. Tizra acknowledges that Customer Content may contain proprietary or confidential information of Customer. Tizra shall not collect, store, process, record, reproduce, disclose, or use the Customer Content except: (a) to perform its obligations under this Agreement and any amendments hereto, including, without limitation, to provide the Hosted Services; (b) to perform statistical analysis and measure the performance of the Hosted Services; (c) to reasonably monitor Customer's, its Permitted Users' and End Users' use of the Hosted Services for performance, reliability, and security purposes; (d) to enforce the terms of this Agreement; and (e) as otherwise authorized by Customer pursuant to this Agreement or another written instrument executed by both Parties. Notwithstanding the foregoing, Tizra may use aggregated, anonymized and/or deidentified Customer Content (“Anonymized Data”) and Usage Data for its internal business purposes, including without limitation, to measure the performance of and improve the Tizra Software and related services offered by Tizra. In no event will Tizra reidentify, or attempt to reidentify, Anonymized Data.
2.4 Security. Tizra shall employ appropriate technical and organizational measures designed to protect Customer Content against any accidental or unlawful access, destruction, loss, theft, interception, or alteration by unauthorized persons, that are consistent with commercial practices in the industry. The Parties expressly recognize that, although Tizra shall take reasonable measures, or cause such reasonable measures to be taken, to protect Customer Content, it is impossible to maintain flawless security. Except with respect to damages that result directly from a breach of Tizra’s express obligations in this Section 2.4, Customer is solely responsible for any damage caused by unauthorized destruction, loss, interception, or alteration of the Customer Content by unauthorized persons.
2.5 Security Incidents. In the event that Tizra has actual knowledge that there has been a Security Incident that compromises either the security, confidentiality, availability or integrity of Customer’s Personal Information within the Tizra Hosting Environment, Tizra shall notify Customer as soon as practicable, but no later than seventy-two hours after Tizra has actual knowledge of the Security Incident.
2.6 Service Level.
(a) Tizra shall use all commercially reasonable efforts to provide the Hosted Services twenty-four (24) hours per day, seven (7) days a week, provided, however, that from time to time, Tizra or its subcontractors may perform scheduled or unscheduled maintenance as may be necessary to maintain the proper operation of the Tizra Software and Customer Publishing Website, and access to Hosted Applications and the Customer Publishing Website may be impaired or interrupted while such maintenance is being performed. Tizra shall use commercially reasonable efforts to restrict scheduled maintenance to off-peak hours between the hours of 11:00PM and 6:00AM Eastern Time and to provide reasonable prior notice of any maintenance that is expected to create significant interruption to the Hosted Services.
(b) Outside of scheduled maintenance as provided for in this subsection 2.6, Tizra endeavors to provide access to the Hosted Services with automated monitoring 24 hours a day, seven days a week. In the event of a critical failure that prevents End Users from gaining access to content, or which represents a significant threat to security, Tizra will use commercially reasonable efforts that have staff available to respond within four hours of receiving a report via agreed upon channels. For non-critical failures, Tizra will respond during normal business hours.
3 Customer Obligations.
3.1 End User Data. Customer represents and warrants to Tizra that (a) if required by applicable law, it will provide and make available to End Users a legally compliant privacy policy and cookie policy, it shall use End User Data in accordance with all applicable Customer privacy policies, cookie policies and all applicable laws and regulations, including without limitation, Applicable Data Privacy Laws; (b) it has obtained all necessary rights, licenses, and consents required by applicable laws and regulations to provide or make End User Data accessible to Tizra for the purposes set forth in this Agreement; and (c) Customer shall not request or permit End Users to submit or upload any information to the Tizra Software that constitutes “sensitive personal information” or “sensitive personal data” under Applicable Data Privacy Laws, including without limitation, any government issued identification numbers (including Social Security numbers and driver’s license numbers), health, medical, or medical insurance data, without the prior written consent of Tizra.
3.2 Customer Content. As between the Parties, Customer has sole control over and responsibility for Customer Content, including End User Data. Customer covenants and represents and warrants that (a) the Customer Content, and Tizra’s access, use, modification, display and distribution of the Customer Content in accordance with this Agreement, including the distribution and display of the Published Content to End Users via the Customer Publishing Website, shall not infringe or violate the Intellectual Property Rights of any third party; (b) Customer shall not engage in any impermissible or unlawful advertising or marketing activities through the Customer Publishing Website or in any other manner violate anti-spamming laws and regulations; (c) the Customer Content shall not contain any materials that could reasonably be considered to be obscene, indecent, offensive, inappropriate, libelous or otherwise defamatory, or that invade any right of publicity or privacy of any third party; and (d) the Customer Content shall not contain any Harmful Code. Customer shall promptly notify Tizra (and in no case later than within two business days) of receiving any allegation that the Customer Content infringes the Intellectual Property Rights of any third party or otherwise does not comply with the requirements of this Agreement. Tizra reserves the right to remove, or require Customer to remove, any such Customer Content from the Customer Publishing Website, or to suspend or terminate the Hosted Services, until Tizra, in its reasonable judgment, is confident such Customer Content complies with the terms of this Agreement.
3.3 End Users. Customer is responsible for handling and responding to End User questions regarding the use of the Customer Publishing Website. To the extent End Users report problems or errors with the Customer Publishing Website, Customer shall promptly report such problems or errors to Tizra. Tizra shall address all such problems or errors in accordance with its obligations under this Agreement, but shall not be responsible for responding directly to End Users. Customer is solely responsible for handling any End User questions or complaints regarding the Published Content.
3.4 Customer Internet Access and Use of Tizra Software. Customer shall be solely responsible, at its expense, for establishing, maintaining, and operating Customer’s connection to the Internet (the speed of which may have a significant impact on the responsiveness of the Hosted Applications), including all access lines, all Internet service provider connection charges, and any long distance telephone charges. Except as permitted by the functionality of the Hosted Applications, Customer shall not access, attempt to access, copy, modify, nor interfere with the Tizra Servers or the Tizra Software. Other than to modify the Customer Publishing Website using the Hosted Applications for display by Tizra as part of the Hosted Services, Customer may not copy, modify, distribute, or reverse engineer the Tizra Software. Customer shall be responsible for keeping secure its administrative login information, which is used by Permitted Users to access the Hosted Applications and modify the Customer Publishing Website, and Tizra shall not be responsible for damages caused by a third party gaining access to the Hosted Applications due to a failure by Customer to keep such information secure or to use sufficiently secure passwords or other credentials.
3.5 Permitted User Restriction. If the applicable Order specifies a maximum number of Permitted Users, then Customer may not authorize and provide passwords and login information to a number of Permitted Users in excess of such number at any point in time (and in no case may the concurrent number of Permitted Users exceed such maximum number at any point in time). Regardless of whether such restriction is specified in an Order, Customer shall require that all Permitted Users log in to the Hosted Applications using their own unique password and login and not use another person’s password or login.
4 Payment.
4.1 Fees. In consideration of Tizra’s provision of the Hosted Services and other undertakings hereunder, Customer agrees to pay to Tizra invoiced fees as set forth on each Order (the “Fees”).
4.2 Reimbursable Expenses. Customer shall reimburse Tizra for verifiable out-of-pocket expenses reasonably incurred by Tizra in performing the Hosted Services hereunder (“Reimbursable Expenses”).
4.3 Payment of Invoices. Unless otherwise agreed by the Parties in the applicable Order, Tizra shall invoice Customer for Fees annually in advance of the Initial Term or each Renewal Term (as defined below) and for Reimbursable Expenses as incurred. Customer shall pay all invoices within thirty (30) days from Tizra’s invoice date. All payments must be made in US Dollars by check, automated clearinghouse (ACH), wire transfer, or any other payment method expressly approved by Tizra in writing. Tizra may discontinue performance under this Agreement if Customer fails to pay any sum due and fails to cure such failure within ten (10) business days of receiving written notice from Tizra. Tizra reserves the right to charge and collect a service fee on any unpaid, past-due license fee amounts equal to the lesser of one and one-half percent (1½ %) per month or the maximum amount permitted by law. Customer will reimburse Tizra for all reasonable collection expenses, including reasonable attorneys’ fees and court costs, for delinquent amounts.
4.4 Disputed Fees. Notwithstanding anything to the contrary in this Section 4, Customer may withhold from payment any amount disputed by Customer in good faith, pending resolution of the dispute, provided that Customer: (a) timely pays all amounts not subject to dispute; (b) notifies Tizra of the dispute prior to the due date, specifying in such notice the amount in dispute and the reason for the dispute with sufficient detail to facilitate an investigation by Tizra and resolution by the Parties; (c) works with Tizra in good faith to resolve the dispute promptly; and (d) promptly pays any amount determined to be due and payable by resolution of the dispute. Provider shall continue performing the Hosted Services in accordance with this Agreement notwithstanding any such dispute or withholding of disputed payment.
4.5 Taxes. All payments due hereunder shall be net of any applicable sales, use, and other taxes, and Customer agrees to pay (or reimburse Tizra, as the case may be) any taxes due in connection with this Agreement, excluding taxes on Tizra’s income, for which Tizra is solely responsible; provided, however, that Tizra shall not invoice Customer for any taxes for which Customer has provided Tizra with an appropriate exemption certificate for the applicable delivery jurisdiction.
5 Term; Termination.
5.1 Term. Unless a different initial term is agreed in the applicable Order, the initial subscription term (the “Initial Term”) shall commence on the earlier of effective date set forth on the applicable Order or the date that the Customer is first provided access to the Hosted Services (the “Effective Date”) and continue for a period one (1) year. Thereafter, this Agreement shall renew automatically for successive one (1) year renewal terms (“Renewal Term”) unless either Party provides written notice to the other Party of non-renewal at least thirty (30) days before the end of the Initial Term or then current Renewal Term, as applicable, or unless earlier terminated as provided below (the Initial Term and each Renewal Term, collectively, the “Term”).
5.2 Termination for Default. Either Party has the right to terminate this Agreement if the other Party is in default of any material obligation under this Agreement, which default is incapable of cure or which, being capable of cure, has not been cured within forty-five (45) calendar days after receipt of written notice of such default (or such additional cure period as the non-defaulting Party may authorize in writing). Notwithstanding the foregoing, Tizra may terminate this Agreement or suspend the provision of the Hosted Services (including hosting the Customer Publishing Website) immediately without providing Customer the opportunity to cure due to any of the following: (a) Customer does not pay one or more invoices remitted to Customer within fifteen (15) business days after the date that the applicable invoice became due and payable, (b) Customer breaches its obligations under Section 3 of this Agreement, or (c) Tizra determines, in its sole discretion, that the Customer Content or Customer’s distribution of the Customer Content is unlawful or infringes on the rights of any third party.
5.3 Effect of Termination. In the event this Agreement is terminated or expires for any reason, then all licenses and rights granted to Customer by Tizra hereunder, including with respect to the Hosted Services and Tizra Software shall terminate and Customer shall cease to use and access the Hosted Applications and Tizra shall cease to host the Customer Publishing Website.
5.4 Survival. In addition, the following terms and conditions shall survive any termination or expiration of this Agreement: Sections 1, 4, 5, 6, 7, 8.3, 8.4, 9, 10, and any other provisions that by their nature are intended to survive termination of the Agreement.
6 Confidentiality.
6.1 Obligation of Confidentiality. The Receiving Party acknowledges that in connection with this Agreement, Receiving Party will gain access to Confidential Information of Disclosing Party. As a condition to being furnished with access to Confidential Information, Disclosing Party shall, during the Term:
(a) not access or use the Confidential Information of Disclosing Party other than as reasonably necessary to perform its obligations under and in accordance with this Agreement or as otherwise authorized by the Disclosing Party;
(b) maintain all Confidential Information in strict confidence and, except as may be permitted by this Agreement and subject to its compliance with the terms herein, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Agreement; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of Confidential Information as the terms of this Section 6;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own sensitive information, and in no event with less than a reasonable degree of care;
(d) ensure its Representatives' compliance with, and be liable for any of its Representatives' noncompliance with, this Section 6.
6.2 Required Disclosure. If Receiving Party is ordered, as part of an administrative or judicial proceeding of competent jurisdiction or other operation of law, to disclose any Confidential Information of the Disclosing Party then, to the extent permitted by applicable law, Receiving Party shall: (a) promptly, and prior to such disclosure, notify Disclosing Party of such requirement so that Disclosing Party can seek a protective order or other appropriate remedy or waive its rights under this Section 6; (b) provide reasonable assistance to Disclosing Party, at Disclosing Party’s expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure; and (c) disclose only those portions of Confidential Information required for compliance with said order.
6.3 Destruction of Confidential Information. Following termination of this Agreement for any reason, promptly following written request of the Disclosing Party, Receiving Party shall destroy all copies of the Receiving Party’s Confidential Information remaining in its possession and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, the Receiving Party (a) shall not be required to destroy any electronic copy of Confidential Information that is created pursuant to its standard electronic backup and archival procedures and is stored until the ordinary course of deletion thereof; or (b) may retain copies of Confidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the Confidential Information, or to the extent required to comply with requirements of applicable laws or regulations; provided, however, that the Receiving Party shall continue to be bound by the terms of this Section 6 with respect to Confidential Information for so long as such Confidential Information remains in its possession.
7 Intellectual Property.
7.1 Tizra Hosting Environment. Tizra and its licensors are, and will remain, the sole and exclusive owners of all right, title, and interest in and to the Tizra Hosting Environment, including all Intellectual Property Rights therein (including any modifications made to the Tizra Hosting Environment by Customer using the Hosted Applications). Tizra hereby grants to Customer a nonexclusive, royalty-free, revocable, right and license during the Term to access and use the Tizra Software in connection with the Hosting Services. Subject to the foregoing license, Tizra reserves all rights relating to the Tizra Hosting Environment. This Agreement does not provide Customer with title to or ownership of the Tizra Hosting Environment, or any copies thereof, in whole or in part, but only a limited right to use the Tizra Software under the terms and conditions of this Agreement. Customer acknowledges that the Hosted Services do not entitle Customer to download or otherwise obtain a copy of the Tizra Software.
7.2 Customer Content. As between the Parties, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to the Customer Content, including all Intellectual Property Rights relating thereto. Customer hereby grants to Tizra a limited, worldwide, royalty-free, fully-paid up, non-exclusive right and license to access, use, display, distribute, store, modify, and reproduce the Customer Content solely as authorized by this Agreement, including, without limitation, to: (a) make available to End Users via the internet such portions of the Customer Publishing Website and Customer Content as such End Users are entitled to access in accordance with any access controls implemented by Customer; (b) store, archive, and make Customer Content accessible to Customer and each End User, in accordance with Customer’s access controls; and (c) otherwise comply with Tizra’s obligations under this Agreement, including Tizra’s obligations hereunder with respect to data privacy, retention, security, back-up, archiving, and disaster recovery. Subject to the foregoing license, Customer reserves all rights relating to the Customer Content not expressly granted herein. This Agreement does not provide Tizra with title to or ownership of the Customer Content or any copies thereof.
7.3 Attribution on Customer Publishing Website. For purposes of clarity, Customer may not use Tizra’s name or trademarks on the Customer Publishing Website or in the Published Content other than that Customer may reference that Tizra hosts the Customer Publishing Website, provides the software tools that allow Customer to customize and maintain the Customer Publishing Website, and enables the functionality on the Customer Publishing Website. Customer shall not state or imply that the Published Content is Tizra’s or supplied by Tizra, or that Tizra is a party to the End User Publishing Transactions.
8 Representations and Warranties; Disclaimers of Warranty.
8.1 Mutual Warranties. Each party hereto represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a legal entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into, to grant the rights and licenses granted under, and to perform its obligations under this Agreement; (c) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party; and (d) the execution and delivery of, and each Party’s performance under, this Agreement does not and will not breach any agreement or other legal duty that such Party owes to any third party.
8.2 Software Warranty. Tizra warrants that: (a) Tizra will perform the Hosted Services using personnel of required skill, experience, and qualifications in a professional and workmanlike manner in accordance with generally recognized industry standards; and (b) with respect to the provision of the Tizra Software to the Customer, the Tizra Software shall function in all material respects as described in this Agreement. As Tizra’s sole obligation, and Customer’s sole remedy, for any breach of this limited warranty of performance, Tizra shall, in its discretion, correct any errors in the Tizra Software or refund Customer the Fees paid by Customer during the period affected by such material error.
8.3 Non-Infringement. The use by Customer of all or any part of the Tizra Software and the Hosted Services, in full compliance with the terms of this Agreement, will not infringe or otherwise violate the Intellectual Property Rights of any third party.
8.4 Disclaimers of Warranty. Except as expressly stated in this Section 8, Tizra disclaims any and all representations and warranties, express or implied, by operation of law or otherwise, regarding or relating to the Tizra Software, Hosted Services, or any other products or services delivered under this Agreement. Tizra specifically disclaims all implied warranties, including without limitation any warranties of merchantability or fitness for a particular purpose (irrespective of any previous course of dealing between the Parties or custom or usage of trade), non-infringement, or that the Hosted Services or Tizra Software will be uninterrupted or error free.
9 Limitation of Liability.
9.1 To the maximum extent permitted by applicable law, Tizra and its suppliers and licensors will not be liable for any loss of revenue, profits or goodwill or for any special, incidental, indirect, consequential or punitive damages or losses resulting from Tizra’s or the Tizra Software’s performance or failure to perform pursuant to the terms of this Agreement, from the furnishing, performance or loss of use of such products or services, including, without limitation, from any interruption of business, whether resulting from breach of contract or other legal liability whatsoever, even if a Party has been advised of the possibility of such damages.
9.2 To the maximum extent permissible under applicable law, except as otherwise provided in Section 9.3 below, in no event will either Party’s liability arising out of or relating to this Agreement, whether arising out of or related to breach of contract, tort, or otherwise, exceed the aggregate fees paid by Customer to Tizra hereunder during the twelve (12) months previous to the events giving rise to such claim.
9.3 The exclusions and limitations in Section 9.2 do not apply to liability arising from: (a) Section 10.1; or (b) a Party's fraud or willful misconduct.
10 Indemnification.
10.1 Customer agrees to indemnify, defend, and hold Tizra and its affiliates, and their respective officers, directors, employees, and agents, successors and assigns, harmless from all liabilities, claims, damages, losses, costs, expenses, demands, suits and actions, including without limitation reasonable attorneys’ fees (collectively “Damages”), resulting from any third party claim that arises from or in connection with (a) Customer’s breach of its representations, warranties and obligations in Section 3; (b) Customer Content; or (c) Customer’s failure to comply with any applicable laws or regulations with respect to its use of the Customer Publishing Website or Published Content.
10.2 Tizra agrees to indemnify, defend, and hold Customer and its affiliates, and their respective officers, directors, employees, and agents, successors and assigns, harmless from all Damages resulting from any third party claim alleging that the Tizra Software or Hosted Services infringes on the Intellectual Property Rights of a third party. Notwithstanding the foregoing, Tizra shall have no obligation to indemnify Customer to the extent Damages arise from the Customer Content, End User Data, or Customer’s specific customizations of the Customer Publishing Website.
10.3 The Party that intends to claim indemnification under this Section 10 (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) of any Damages in respect of which the Indemnified Party intends to claim such indemnification reasonably promptly after the Indemnified Party is aware thereof, and the Indemnifying Party shall assume the defense of any related third party action, suit or proceeding with counsel mutually satisfactory to the Parties. The indemnity agreement in this Section 10 shall not apply to amounts paid in settlement of any claim, loss, damage or expense if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld or delayed unreasonably. The failure of an Indemnified Party to deliver notice to the Indemnifying Party within a reasonable time after becoming aware of any such matter, if prejudicial to the Indemnifying Party’s ability to defend such action, shall relieve the Indemnifying Party of any liability to the Indemnified Party under this Section 10. The Indemnified Party and its employees and agents shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation of any matter covered by indemnification.
11 Miscellaneous.
11.1 Assignment. Neither Party shall assign, delegate, sublicense, or transfer any of its obligations, responsibilities, rights or interests under this Agreement without the written consent of the other Party, except to (a) a successor in a merger or a sale of all or substantially all of such party’s capital stock, assets or business or (b) solely with respect to Tizra, a majority owned subsidiary of Tizra or an affiliate under the same common control as Tizra. Any assignment, delegation, sublicensing, or transfer by either Party in violation of this subsection shall be void and without force or effect.
11.2 Publicity. Tizra may reference Customer’s use of the Hosted Services, and may display portions of the Customer Publishing Website in its marketing and promotional materials.
11.3 Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement because of causes beyond its reasonable control or because of any Act of God, accident to equipment or machinery; any fire, flood, hurricane, tornado, storm or other weather condition; any war, act of war, act of public enemy, terrorist act, sabotage, riot, civil disorder, act or decree of any governmental body; any failure of communications lines, transportation, light, electricity or power; any earthquake, civil disturbance, commotion, lockout, strike or other labor or industrial disturbance; or any illness, epidemic, quarantine, death or any other natural or artificial disaster (each, a “Force Majeure Event”) the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended and performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. Nothing provided herein shall excuse the delay of any payment that is validly due by Customer under this Agreement.
11.4 Notices. Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by a Party pursuant to the terms of this Agreement shall be in writing and shall be deemed given (a) when delivered personally, (b) on the next business day after timely delivery to an overnight courier, (c) on the third business day after deposit in the U.S. mail (certified or registered mail return receipt requested, postage prepaid), and (d) upon confirmation of receipt by electronic mail; in each case addressed to the Party indicated on the Order or as subsequently modified by the receiving Party pursuant to written notice.
11.5 Mediation. Prior to a Party instituting legal proceedings to resolve a dispute under this Agreement (a “Dispute”), such Party shall first notify the other Party of such Dispute and both Parties shall work together in good faith to resolve such matter. If, however, such matter is not resolved within fifteen (15) days of such original notice, then either Party, prior to instituting legal proceedings, may notify the other Party that it desires to try to settle such Dispute through mediation, in which case both Parties shall such submit the Dispute to voluntary, non-binding mediation. Mediation must occur within thirty (30) business days after notice from the notifying Party of its desire to have the Dispute mediated. The Parties mutually shall select an independent mediator experienced in similar agreements, and each shall designate a representative(s) to meet with the mediator in good faith in an effort to resolve the Problem. The specific format for the mediation shall be left to the discretion of the mediator and the designated Party representatives and may include the preparation of agreed-upon statements of fact or written statements of position furnished to the other Party. If the Parties are unable to resolve a Dispute within forty five (45) days of the original notice of such Dispute (including if for whatever reason the Parties were unable to agree on an impartial mediator), then either Party may seek litigation. A Party may seek a judicial resolution only after first following the provisions set forth in this Section, except that either Party may seek injunctive or other equitable relief at any time. To the extent Tizra is permitted to suspend or terminate the Hosted Services pursuant to the terms of this Agreement, then Tizra may do so without first complying with the provisions of this Section 11.5, provided that Customer may seek resolution under this Section 11.5 if it disputes Tizra’s right to so terminate or suspend the Hosted Services.
11.6 Governing Law. All questions concerning the validity, operation, interpretation, and construction of the Agreement will be governed by and determined in accordance with the substantive laws of the State of Rhode Island without regard to its conflicts of law provisions. Other than as necessary to enforce any final judgment, award or determination, any action brought pursuant to or in connection with this Agreement shall be brought only in the state or federal courts within the State of Rhode Island without regard to its conflict of laws provisions. In any such action, both Parties submit to the personal jurisdiction of the courts of the Rhode Island and waive any objections to venue of such courts.
11.7 Waiver of Compliance. Neither Party shall by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other Party of any of the provisions of this Agreement. Further, the waiver by either Party of a particular breach of this Agreement by the other shall not be construed as or constitute a continuing waiver of such breach or of other breaches of the same or other provisions of this Agreement.
11.8 Remedies. Except as expressly stated otherwise herein, each Party’s rights and remedies provided for in this Agreement shall be cumulative, exercisable concurrently or separately, and in addition to and not in lieu of any other remedies available to either Party at law, in equity, or otherwise.
11.9 Entire Agreement. The Parties hereto acknowledge that this Agreement, including any schedules or orders incorporated herein, is the complete and exclusive statement of agreement respecting the subject matter hereto and supersedes and renders null and void any and all agreements and proposals (oral or written), understandings, representations, conditions, and other communications between the Parties relating hereto. This Agreement may be amended only by a subsequent writing that specifically refers to this Agreement and is signed by Customer and Tizra.