PARTNER API SERVICE AGREEMENT
Last Revised: 8/25/2022
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT IMPACT YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES.
a) "Agreement Personal Data" means any personal data that is processed by the Partner in connection with this Agreement or the Partner Program.
b) "Data Protection Legislation" means any laws applicable to a Party or its affiliates which relate to data protection or data privacy including, without limitation: (i) the General Data Protection Regulation (2016/679) (the "GDPR") and any national law supplementing the GDPR, and (ii) the UK General Data Protection Regulation as defined by the Data Protection Act 2018 as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (the "UK GDPR").
c) "End Users" means end users and consumers of Partner's services on a Partner Site or who visit a Partner Site.
d) "Fees" means (i) network fees (including gas fees); (ii) L2 vendor fees; and (iii) payment processor fees.
e) "IP" means all intellectual property and proprietary rights, including, but not limited to, all databases, functionalities, software, websites, discoveries, developments, concepts, designs, ideas, know-how, improvements, inventions, trade secrets, original works of authorship, whether or not patentable, copyrightable or otherwise legally protectable, as well as any accompanying documentation or other written materials, tangible or intangible, and all legally protectible elements of the foregoing, including, without limitation, all derivative works, translations, adaptations, and variations of the same, regardless of the medium, format or form, now known and hereinafter developed or discovered. For the avoidance of doubt, IP includes, without limitation, any new product, machine, article of manufacture, source code, method, procedure, process, technique, use, equipment, device, apparatus, system, compound, formulation, design or configuration of any kind, or any improvement thereon.
f) "L2" means the layer-2 scaling solution(s) that hosts the Unstoppable Naming Service.
g) "Partner API" means the application programming interface ("API") owned by UD (and all software, features, functions, services, materials, and proprietary and IP rights associated therewith), that allows Partners to resell UD Products and/or Services to its End Users.
h) "Partner Net Revenue" means the total revenue received by UD from the sale of UD Products and/or Services to End Users during the single session that resulted from the redirect from a Partner Site (excluding any "profits" generated from purchases made using store credit or promotional credit) less any Fees, refunds, deductions, taxes, or allowances. For the avoidance of doubt, revenue earned by UD from an End User in any subsequent session or interaction that is not part of the redirect from the Partner will not be deemed Net Revenue.
i) "Partner Program" means the use by a Partner of the Partner API to resell UD Products and/or Services to End Users on its Partner Site and includes the Partner Program Services.
j) "Partner Royalty" means 20% of the Partner Net Revenue in a given calendar month.
k) "Partner Site" means Partner's website, social media account, and/or any section of a third-party site controlled by Partner, including without limitation, videos and blogs posted and controlled by Partner, upon which Partner may link or connect End Users to the Partner API.
l) "Personal Data" means, in addition to any definition for such term or for any similar term (e.g., "personally identifiable information", "personal information" or "PII") provided by Data Protection Legislation, all information or data that directly or indirectly identify or could be used to directly or indirectly identify an individual person or device.
m) "UD Domain" means any non-fungible token ("NFT") domain created by UD, that is subject to the Unstoppable Naming Service.
n) "UD Products and/or Services" means the UD Domains and other blockchain-based entity names and associated name resolution services (including the Unstoppable Naming Service), and/or any other related products and services, whether existing now or in the future, that are provided by UD or made available on the UD Site in connection with UD's business (including, for the avoidance of doubt, the UD Site).
o) "UD Site" means the UD website located at https://www.unstoppabledomains.com and any other mobile site or mobile application provided by us, or any other platform that UD may provide, including any features, functions, services, products, materials or information available therein.
q) "Unstoppable Naming Service" shall mean all domain registries under the Unstoppable Naming Service (UNS), including the current registries and future registries on the UNS meta-registry system. .
3) PARTNER PROGRAM
a) Through participation in the Partner Program, UD will provide Partner access to the Partner API, which shall allow Partner to make available for sale UD Products and/or Services to End Users on the Partner Site. Partner acknowledges that such sale may be effectuated through a redirect to a UD Site.
b) In connection with your participation in the Partner Program, UD will pay you the Partner Royalty generated during the immediately-preceding month, less any withholdings or charge-backs. The Partner Royalty shall be paid within 30 business days following the last day of each calendar month such Partner Royalty is due.
4) IP AND CONTENT RELATING TO THE PARTNER API
b) Use of IP.
i) Subject to these Terms, UD hereby grants to Partner a worldwide, non-exclusive, non-transferable, non-sublicensable, license and right to the Partner API, solely in connection with Partner's use of the Partner API Services. Partner shall not use Partner API Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any IP rights or other right of any person, or that violates any applicable law. Partner shall not permit any third party to copy, modify, create derivative works of, or sell, assign, distribute, transfer or otherwise make available, the Partner API.
ii) Any text, graphics, logos, icons, images, audio clips, video clips and software, and any of the UD Products and/or Services made available through the Partner APIs, and all legally protectable elements of the foregoing, including, without limitation, all derivative works, translations, adaptations or variations of the same, regardless of medium, format or form, now known or hereinafter developed or discovered, and regardless of where produced, and all IP rights therein (the foregoing, "Content") are all owned by or licensed to UD. Content may contain trademarks, service marks and trade names that are owned by Unstoppable and may also contain brand and product names that are trademarks, service marks or trade names of third parties. Partner is hereby granted a limited license to access and use the Content solely in connection with Partner's or its End User's provision or use of (as applicable) the Partner API, provided that Partner and End User keep all copyright or other proprietary notices intact.
iii) Unless authorized in writing by an officer of UD, Partner may not use any Content without UD's prior written consent and even if UD consents, in any manner that is not likely to cause confusion among customers, or in any manner that disparages or discredits UD or its licensors. Customer may not sell, reproduce, distribute, copy, duplicate, resell, modify, display, publicly perform, prepare derivative works based on, frame, mirror, repost, or exploit the Content for any commercial purpose, without UD's prior written consent. If Partner violates this Agreement, Partner's permission to use the Content will automatically terminate, Partner must immediately destroy Content in Partner's possession or under Partner's control and any copies Partner has made and UD may end Partner's authorization to participate in the Partner Program.
iv) Partner acknowledges and agrees that the Partner API, the Content and any other UD Products and/or Services are the exclusive property of UD or its licensors and that this Agreement grants to Partner no title or rights of ownership in the Partner API, UD Products and/or Services or Content or any components thereof, or any other license other than as explicitly set forth herein.
v) Notwithstanding anything to the contrary in this Agreement, the Partner API, the Partner API Services or the UD Products and/or Services may include software components provided by UD or its affiliates or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
vi) The UD logo and any UD product or service names, logos or slogans that may appear in the course of Partner's participation in the Partner Program are trademarks of UD or UD's affiliates or licensors and may not be copied, imitated or used (including in connection with any domain name or website, in any bids for keywords or Google Ads (or similar programs)) or in any advertising or otherwise, in whole or in part, without UD's prior written permission. Partner may not use any metatags or other "hidden text" utilizing "Unstoppable" or any other name, trademark or product or service name of UD or UD's affiliates without UD's prior written permission. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Unstoppable.
vii) You agree that the use of our IP in any manner, other than as expressly permitted hereunder, shall constitute unlawful infringement of our IP rights, and may subject you to claims for damages (including potential treble damages for knowing or willful infringement) and the obligation to pay our legal fees and costs in connection with any action or proceeding in which we seek to enforce our rights under this Agreement or with regard to any of our IP rights.
c) Prices and Fees; Discounts and Coupons.
i) You are required to list the price of any UD Products and/or Services made available through the Partner API on your Partner Site in accordance with prices proviided on our UD Site ("Rates"), which can be found here. You may not list any price for a UD Product and/or Service that is not a Rate.
ii) You are not allowed to post any refunds, credits or discounts with respect to or relating to the UD Products and/or Services without UD's prior written consent in each instance. This does not prevent End Users from applying UD coupons to their purchases.
iii) You acknowledge that all Rates for the UD Products and/or Services are subject to change from time to time, at our sole discretion.
d) Assignment of Feedback. Notwithstanding anything to the contrary in this Agreement, Partner hereby assigns to UD all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Partner to UD during Partner's participation in the Partner Program.
e) Permitted Uses of Partner API. You will use the Partner API solely in connection with the rights and obligations provided under this Agreement. You will not decompile, disassemble or otherwise reverse engineer the Partner API or cause others to do so.
f) Compliance with Law. Partner will not violate in any material respect any applicable law, or rule or regulation of any governmental authority (including applicable anti-corruption and anti-bribery laws).
5) DATA PROTECTION
b) Data Protection.You acknowledge that (i) you may receive End User data through your participation in the Partner Program and use of the Partner API for limited purposes and uses, and (ii) each Party is a separate controller in respect of any Agreement Personal Data and shall independently determine the purposes and means of such processing. You agree to comply with your obligations under Section 7 (Data Security) and all applicable requirements of Data Protection Legislation in relation to Agreement Personal Data and to not knowingly do anything or permit anything to be done which might lead to a breach by UD of such Data Protection Legislation. If (i) UD becomes aware of any failure of the Partner to comply with Data Protection Legislation; or (ii) the Partner breaches Data Protection Legislation in relation to the Agreement Personal Data, UD shall be entitled to immediately terminate this Agreement and your participation in the Partner Program.
a) Confidentiality. You agree that you will exercise a reasonable level of care and discretion to prevent and restrain the use, disclosure, or reproduction of our Confidential Information. "Confidential Information" includes, but is not limited to, any data related to purchases made by End Users, or any other non-public information discovered through your use of the Partner API. Confidential Information does not include any information, however designated, that:
i) is or subsequently becomes publicly available without your breach of any obligation under this Agreement;
ii) became known to you prior to disclosure under this Agreement,
iii) became known to you from a source other than us and other than by the breach of another obligation of confidentiality; or
iv) is independently developed by you.
This obligation shall last three (3) years after the termination of your participation in the Partner Program.
b) End User Notices. If there are any revisions, modifications, discontinuances or other material changes to the UD Products and/or Services that require End User notification, you agree to provide any assistance necessary for us to notify your End Users, if appropriate.
c) Misrepresentations. You agree to not make or give any false or misleading representation, warranties, claims or other promises about the price, quality, value, inclusion, deliverability, or availability of any of the Partner API or UD Products and/or Services, beyond what is permitted under this Agreement.
d) Partner API Hold. Your ability to access the Partner API and any Partner Royalty, may be suspended, cancelled or not paid (as applicable) if, in our sole discretion, we receive an excessive number of chargebacks and/or refunds or if we believe you are not in compliance with any of the terms of this Agreement.
ii) If UD terminates or suspends Partner's use of the Partner API Services for any reason, Partner is prohibited from using the Partner API Services or participating in the Partner Program thereafter. In addition to terminating or suspending Partner's account, UD reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive remedies.
f) Availability of the Partner API. UD cannot and does not guarantee the Partner API Services will be available and UD may experience hardware, software, or other problems or need to perform maintenance related to the Partner API Services, resulting in interruptions, delays, or errors. UD reserves the right to change, revise, update, suspend, discontinue, or otherwise modify the Partner API Services at any time upon reasonable notice. Partner agrees that UD has no liability whatsoever for any loss, damage, or inconvenience caused by Partner's or its End Users' inability to access or use the Partner Services, Partner API or any UD Products and/or Services during any downtime or discontinuance of such services. Nothing in this Agreement will be construed to obligate UD to maintain and support the Partner API Services or to supply any corrections, updates, or releases in connection therewith.
7) ADVERTISING AND MARKETING RULES
It is the intent of UD to treat all of UD's customers fairly. Accordingly, Partner agrees to comply with applicable laws, regulations and guidelines related to the advertising and marketing of the UD Products and/or Services to the extent permitted under this Agreement.
8) DATA SECURITY
a) You are responsible for compliance with all applicable Data Protection Legislation regarding any transmission of Personal Data to or from the United States or the country in which you reside.
b) To the extent that the Partner further transfers Agreement Personal Data, whether to UD, intra-group or to a third party, the Partner shall ensure that appropriate contractual safeguards (including, as applicable, a data processing agreement or Standard Contractual Clauses) are in place to protect such further transfer.
c) Partner shall:
i) implement appropriate technical and organizational security measures in relation to the processing of Agreement Personal Data to ensure a level of security appropriate to the risk as required by Data Protection Legislation, taking into account the nature, scope, context, and purpose of processing;
ii) promptly assist UD in complying with any data subject rights request and meeting the applicable timescales set out under the Data Protection Legislation, including by forwarding (promptly and in any event within five (5) business days from the date on which it received the request) any written request received from a data subject exercising their rights in relation to the Agreement Personal Data where such request concerns processing in respect of which UD is a controller;
iii) promptly assist and cooperate with UD in relation to (i) any complaint, notice or communication from supervisory authorities or individuals which relates directly or indirectly to the Agreement Personal Data or a potential failure to comply with Data Protection Legislation; or (ii) any lawful court order or governmental inquiry; and
iv) notify UD without undue delay, and in any event within twenty four (24) hours if Partner becomes aware of, or reasonably suspects a Personal Data breach, and shall cooperate with, and provide reasonable assistance to, UD in relation to any notifications to supervisory authorities or to data subjects which either Party is required to make under Data Protection Legislation.
9) ASSUMPTION OF RISK
By using the Partner API Services, Partner expressly acknowledges and assumes all risks including, but not limited to: errors with respect to the Partner API Services, the Partner API, and the UD Products and/or Services; inability of End Users to access the Partner API or any of the UD Products and/or Services; blockchain malfunctions or other technical errors; server failure or data loss; telecommunications failures; unfavorable regulatory determinations or actions (including with respect to NFTs or cryptocurrencies); cybersecurity attacks; privacy risks; vulnerabilities in UD'r any third party'ecurity; unauthorized access and personal information disclosure; unauthorized access to applications; unauthorized third-party activities, including, without limitation, the introduction of viruses or other malicious code; the use of phishing, sybil attacks, 51% attacks, or brute forcing; changes to the protocol rules of a blockchain (e.g., "forks"), or other means of attack that affect, in any way, the Partner API Services; or any other unanticipated risks (collectively, "Platform Risks"). Customer acknowledges that its End Users have a sufficient understanding of the functionality, transmission mechanisms and other material characteristics of, blockchain technology, digital assets, and digital wallets to appreciate the risks and implications of Platform Risks.
We also reserve the right to modify the functionality of our Partner API at any time and for any reason.
11) RELATIONSHIP OF PARTIES
Partner and UD are independent contractors, and nothing in this Agreement will create any corporate, partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You agree that nothing in this Agreement provides you with any authority to make or accept any offers or representations on UD's behalf. You agree not to make any statement, whether on your Partner Site or otherwise, that contradicts anything in this Section 11.
12) REPRESENTATIONS, WARRANTIES AND COVENANTS
a) Partner hereby represents, warrants, and covenants that:
i) Partner has reviewed and understands this Agreement and agrees to be bound by its terms.
ii) Partner's acceptance of this Agreement and any activities in connection herewith will not violate any (i) provision of law, rule, or regulation to which Partner is subject, (ii) order, judgement, or decree applicable to Partner or binding on Partner, (iii) provision of Partner's bylaws or certificate of incorporation, or (iv) agreement or other instrument applicable to Partner or binding on Partner.
b) Partner is not required to obtain consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party in connection with this Agreement.
13) REPRESENTATIONS, WARRANTIES AND COVENANTS
a) Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL UD'S TOTAL LIABILITY FOR ANY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE PARTNER API SERVICES, THE UD PRODUCTS AND/OR SERVICES OR ANY THIRD-PARTY SITES, OR OTHERWISE RELATED TO THIS AGREEMENT, (REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED UPON CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE) OR ANY OTHER LEGAL OR EQUITABLE THEORY EXCEED THE TOTAL PARTNER ROYALTY PAID TO PARTNER BY UD FOR THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
b) Disclaimer of Consequential and other Indirect Damages. UD WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY UD PRODUCT AND/OR SERVICE, EVEN IF UD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
c) Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE CONSIDERATION OFFERED BY UD TO PARTNER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
PARTNER HEREBY RELEASES UD AND UD'S OFFICERS, DIRECTORS, AGENTS, ATTORNEYS, AND EMPLOYEES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH DISPUTES WITH ONE OR MORE END USERS OR AN OUTSIDE PARTY.
UD AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, SUITABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE UD PRODUCTS AND/OR SERVICES, THE PARTNER API SERVICES OR THE UD SITE. UD AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (I) THE UD PRODUCTS AND/OR SERVICES, PARTNER API SERVICES OR THE UD SITE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, OR DATA; (II) THE UD PRODUCTS AND/OR SERVICES, PARTNER API SERVICES, THE UD SITE, OR THE QUALITY THEREOF WILL MEET PARTNER'S OR ANY CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; (III) THE UD PRODUCTS AND/OR SERVICES, PARTNER API SERVICES AND THE UD SITE WILL BE FREE FROM ANY ERRORS, MISTAKES OR INACCURACIES, AND THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED; (IV) THERE WILL BE NO UNAUTHORIZED ACCESS TO OR USE OF THE UD PRODUCTS AND/OR SERVICES, PARTNER API, THE UD SITE, OR UD'S SECURE SERVERS, INCLUDING WITH RESPECT TO ALL PERSONAL INFORMATION CONTAINED THEREIN OR RELATED THERETO; AND (V) THE UD PRODUCTS AND/OR SERVICES, PARTNER API SERVICES AND THE UD SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS (INCLUDING ANY BUGS, TROJAN HORSES, OR THE LIKE), WHICH MAY BE TRANSMITTED TO OR THROUGH THE PARTNER API SERVICES OR BY ANY THIRD PARTY, AND ASSUMES NO LIABILITY OR RESPONSIBILITY WITH RESPECT ANY FAILURES RELATING TO OR ARISING OUT OF ANY OF THE FOREGOING, INCLUDING ANY RESPONSIBILITY FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT THEREOF. THE UD PRODUCTS AND/OR SERVICES, PARTNER API SERVICES AND THE UD SITE ARE PROVIDED STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY UD. NO ADVICE, INFORMATION, OR ACTION FROM UD OR ANY OTHER SOURCE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Partner hereby agrees to defend, indemnify and hold harmless UD and its affiliates, and their directors, officers, employees, agents, shareholders, and members, against any and all claims, actions, demands, liabilities, losses, damages, judgements, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or relate to its or its End User's breach of this Agreement; violation of laws, rules or regulations, including data privacy laws, rules or regulations; violation of any IP right or other rights of another party; or misuse of the Partner API Services. The foregoing defense and indemnification obligation will survive this Agreement and Partner's use of the Unstoppable Services, as applicable. Partner acknowledges and agrees that Unstoppable may, at its option, control the defense or settlement of any such claims.
b) Assignment. This Agreement will be binding on and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Partner may not assign this Agreement, by operation of law or otherwise, without UD's prior written consent. UD may assign any or all of UD's rights and obligations to others at any time.
c) Exclusivity. None of this Agreement nor any of the provisions contained herein shall be construed to create an exclusive relationship between the parties, and each party shall be free to engage others to provide products or services of the same or similar nature to those provided by the other party.
d) Notice. You may give notice to the us by written communication sent by next-day mail delivered by a nationally recognized delivery service or by email to firstname.lastname@example.org.
i) Such notice shall be deemed to have been given upon the second business day after sending.
Notice for UD shall be sent to:
Attn: Legal Department 8465 Sahara Ave
Ste 111 Unit #1017 Las Vegas, NV 89117
e) No Third-Party Beneficiaries. Except for Sections 13 (Limitations of Liability) and 16 (Indemnification), this Agreement is made for the benefit of the parties and not for the benefit of any third parties, other than End Users. No other person or entity will be a third-party beneficiary to this Agreement.
f) Force Majeure. No failure, delay or default in performance of any obligation of UD, including without limitation, with respect to the UD Products and/or Services, the Partner API Services, or the UD Site, shall constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without gross negligence of UD, including, without limitation, action or inaction of governmental, civil or military authority, change in law, fire, strike, lockout or other labor dispute, flood, terrorist act, war, or riot, theft earthquake and other natural disasters. In addition, no failure, delay or default in performance of UD, including without limitation, with respect to the UD Products and/or Services or the UD Site, shall constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control or intent of UD, including, without limitation errors of implementation (e.g., "bugs" and coding errors), errors of design, and errors resulting from unexpected interaction of various code modules or systems, failures of such systems or equipment, interruptions in access to or the operations of such systems or equipment; loss of functionality of such systems or equipment; degradation or corruption of such systems or equipment; compromises in the security or integrity of such systems or equipment; loss of power to such systems or equipment; and other situations that adversely affect such systems or equipment, however caused or occurring. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such occurrence.
g) Governing Law and Jurisdiction. This Agreement shall be interpreted in accordance with the laws of the State of Delaware (excluding conflict of laws rules), without giving effect to any conflict of law principles that would require the application of the laws of a different jurisdiction. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
h) Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California before one arbitrator who shall have at least five (5) years' experience in the operation and interpretation of agreements governed by Delaware law. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures In those Rules if the amount in controversy is less than $250,000. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. Each party acknowledges that any actual or threatened breach of this Agreement may cause the other party irreparable harm for which money damages may not be an adequate remedy and that injunctive relief may be an appropriate remedy for such breach in addition to all legal remedies without showing or proving any actual damage and without any bond being required to be posted.
i) No Waiver. UD's failure to enforce Partner's strict performance of any provision of this Agreement will not constitute a waiver of UD's right to subsequently enforce such a provision or any other provision of this Agreement.
k) Severability. In the event that one or more of the provisions of this Agreement is invalid or otherwise unenforceable, the provision will be modified by the arbitrator or court, as applicable, and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the enforceability of remaining provisions will be unimpaired.
For specific questions about these Terms, please contact Unstoppable at email@example.com.