Terms of Service

This Agreement is effective as of the date upon which you (a) first click a button or check a box titled “I agree” or the equivalent, or (b) first use or access the Services, whichever is earlier (“Effective Date”).  If you are accepting this Agreement on behalf of Customer, you represent and warrant that you have the authority to bind Customer to the terms and conditions of this Agreement.

1. “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Services, including, without limitation, any usage data or trends with respect to the Services.
   
   

2. “Authorized User” means an employee or contractor who Customer has authorized to Use the Services.
   
   

3. “Ephemeral IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, and Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
   
   

4. “Customer Materials” means all Input, information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Services or to Ephemeral in connection with Customer’s Use of the Services, but excluding, for clarity, Account Data, Aggregate Data, and any other information, data, data models, content or materials owned or controlled by Ephemeral and made available through or in connection with the Services. 
   
   

5. “Documentation” means the user manuals, training materials, and other similar materials as provided by Ephemeral to Customer (including any revised versions thereof) relating to the Services, which may be updated from time to time.
   
   

6. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
   
   

7. “Order” means (i) mutually executed order form or other mutually agreed upon ordering document, or an order page accepted electronically by Customer via an online checkout or similar process; (ii) purchase order issued by Customer and accepted by Ephemeral in writing; or (iii) quote issued by Ephemeral and accepted by Customer, in each case which expressly references this Agreement and sets forth the applicable Services to be provided by Ephemeral.
   
   

8. “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
   
   

9. “Services” means the real-time intelligence services and content provided by Ephemeral at https://castinsights.com, as more particularly described or identified in the applicable Order.
   
   

10. “Use” means to use and/or access the Services in accordance with this Agreement and the Documentation.

1. Services.  Subject to the terms and conditions of this Agreement, Ephemeral hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 12(f)) right to Use the Services during the Term, solely for Customer’s internal business purposes.
   
   

2. Use Restrictions.  Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Services or Documentation, in whole or in part; (iii) decipher, reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain improper access to any software component of the Services or any components, models, algorithms or systems used to provide the Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Services to any other Person, or otherwise allow any Person to use the Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Services, Output, or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Ephemeral for use expressly for such purposes; (viii) use the Services, Documentation or any other Ephemeral Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services; (ix) use the Services or any Output in a manner that violates the OpenAI Usage Policies located at https://openai.com/policies/usage-policies, or any other such usage policies as applicable; or (x) utilize the Services (including any AI models or derivatives thereof), Documentation, Input or Output to train, improve or have trained or improved an AI model (e.g., engage in “model scraping”).
   
   

3. Authorized Users.  Customer will not allow any Person other than Authorized Users to Use the Services.  Customer may permit Authorized Users to Use the Services, provided that Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure all credentials (including usernames, passwords, access tokens, and any other authentication or access information), hardware and software used to access the Services or application programming interfaces made available by Ephemeral in accordance with customary security protocols, and will promptly notify Ephemeral if Customer knows or reasonably suspects that any such credential, username and/or password has been compromised. Each account for the Services may only be accessed and used by the specific Authorized User for whom such account is created. Ephemeral may process personal data about Authorized Users (“Account Data”) in accordance with its Privacy Notice available at: [insert URL]. Account Data is not Customer Materials.
   
   

4.  Third-Party Services.  Certain features and functionalities within the Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Services.  Ephemeral does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto.  Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Services.
   
   

5. Reservation of Rights.  Subject to the limited rights expressly granted hereunder, Ephemeral reserves and, as between the Parties will solely own, the Ephemeral IP and all right, title and interest in and to the Ephemeral IP and to the Services. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
   
   

6. Beta Services. Ephemeral may offer some hosted services and corresponding Documentation to you that is designated alpha, beta or pre-release, identified using alpha, beta, pre-release, or similar descriptions (“Beta Services”). Customer acknowledges and agrees that: (i) the Beta Services may not operate properly, be in final form or be fully functional; (ii) the Beta Services may contain errors, design flaws or other problems; (iii) it may not be possible to make the Beta Services fully functional; (iv) the information obtained using the Beta Services may not be accurate; (v) use of the Beta Services may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (vi) Ephemeral is under no obligation to release a commercial or public version of the Beta Services; and (vii) Ephemeral has the right to unilaterally abandon development of the Beta Services, at any time and without any obligation or liability to you. Notwithstanding anything else in this Agreement, all Beta Services are provided on an “as is” basis and Ephemeral makes no warranties of any kind, express, implied, statutory or otherwise with respect to the Beta Services.
   
   

7. Feedback. From time to time Customer or its employees, contractors, or representatives may provide Ephemeral with suggestions, comments, feedback or the like with regard to the Ephemeral IP (collectively, “Feedback”) which Ephemeral may use and exploit in connection with Ephemeral’s business purposes, including the testing, development, maintenance and improvement of the Ephemeral IP.

1. Fees.  Customer will pay Ephemeral the fees set forth in the applicable Order (“Fees”) in accordance with the payment terms set forth therein. Except as otherwise provided in the relevant Order, Ephemeral will issue invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than 30 days after the date of such invoice. Ephemeral reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon 60 days’ prior notice to Customer (which may be sent by email). 
   
   

2. Payments.  Payments due to Ephemeral under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Ephemeral or such other payment method mutually agreed by the Parties.  All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement.  If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Ephemeral may suspend Services until all payments are made in full.  Customer will reimburse Ephemeral for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
   
   

3. Taxes.  Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Ephemeral hereunder, other than any taxes imposed on Ephemeral’s income.  Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Ephemeral hereunder, Customer will pay an additional amount, so that Ephemeral receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

1. Ownership. Ephemeral acknowledges that, as between Customer and Ephemeral and except as set forth in Section 5(b), Customer owns and retains all right, title and interest in and to all Customer Materials.
   
   

2. License. Customer hereby grants Ephemeral a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials and Input (defined below) solely for the purpose of hosting, operating, improving and providing the Services and Ephemeral’s other related products, services and technologies during the Term, to enforce compliance with this Agreement, and to comply with applicable law.    
   
   

3. Customer Materials. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials and Input (including any personal data provided or otherwise collected pursuant to Customer’s privacy notice) as contemplated by this Agreement and (ii) Ephemeral’s use of the Customer Materials or Input in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
   
   

4. Input and Output. The Services may generate output for Customer (each, “Output”) in response to: (i) Customer’s interaction, request or input; or (ii) Customer Materials uploaded or submitted to influence the Output or Services (collectively, “Input”).
   
   

5. Rights to Input and Output. As between Customer and Ephemeral, to the extent permitted by applicable law and subject to Section 3(e): (1) Customer owns and is responsible for all Input that Customer provides; and (2) subject to Customer’s compliance with this Agreement, Ephemeral assigns to Customer its right, title and interest in and to the Output generated by Customer’s Input.  Customer may not represent that Output from the Services was human-generated. Ephemeral may use and modify Customer’s Input and Output to enforce this Agreement, to provide, maintain, develop, and improve the Services for Customer during the Term and to comply with applicable law.

Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and to submit Input to the Services; and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party. 

1. Ephemeral Indemnification. Subject to Section 7(b), Ephemeral will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that the Customer’s Use of the elements of the Services that are proprietary to Ephemeral infringe or misappropriate such third party’s copyright rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Ephemeral (including reasonable attorneys’ fees) resulting from such Claim.
   
   

2. Exclusions. Ephemeral’s obligations under Section 7(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Services that have been provided by Ephemeral; (iv) modifications to the Services by anyone other than Ephemeral; (v) combinations of the Services with software, data or materials not provided by Ephemeral; or (vi) any Output.
   
   

3. IP Remedies.  If Ephemeral reasonably believes the Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Ephemeral may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use.  If Ephemeral determines that neither alternative is commercially practicable, Ephemeral may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer.  In the event of any such termination, Ephemeral will refund to Customer a pro-rata portion of the fees that have been paid for the unexpired portion.  The rights and remedies set forth in this Section 7 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Services. 
   
   

4. Customer Indemnification.  Customer will defend Ephemeral against Claims arising from (i) any Customer Materials or Input (or their processing or use by Ephemeral), including, without limitation, (A) any Claim that the Customer Materials or Input infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials or Input violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) Use of the Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 3(b), and in each case, will indemnify and hold harmless Ephemeral against any damages and costs awarded against Ephemeral or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
   
   

5. Indemnification Procedures.  The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof.  The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services).  The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party. 

1. General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, OUTPUT, AND OTHER CAST IP ARE PROVIDED ON AN “AS IS” BASIS, AND CAST MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE CAST IP, THE SERVICES, OUTPUT OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CAST HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  WITHOUT LIMITING THE FOREGOING, CAST HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES OR OUTPUT WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
   
   

2. Similarity, Accuracy and Appropriateness of Output. Due to the nature of machine learning, Output may not be unique and the Services may generate the same or similar Output for Customer or a third party. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE SERVICES MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OR OTHERWISE UNDESIRABLE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE INPUT PROVIDED AND CUSTOMER’S COMPLIANCE WITH THIS AGREEMENT, AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, CAST WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER, ITS AUTHORIZED USERS OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER MATERIALS, INPUT, OUTPUT OR THEIR USE. Customer will evaluate the content, nature and accuracy of any Output as appropriate for the applicable use case, including by using human review of the Output.
   
   

3. No Professional Advice. WITHOUT LIMITING SECTION 9(a), CUSTOMER ACKNOWLEDGES THAT CAST IS NOT ENGAGED IN RENDERING ANY FINANCIAL, TAX, REGULATORY, ACCOUNTING, INVESTMENT, LEGAL OR OTHER PROFESSIONAL ADVICE. ALL OUTPUTS ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO PROVIDE, AND SHOULD NOT BE RELIED UPON FOR ANY SUCH PROFESSIONAL ADVICE. Customer takes full responsibility for its use of the Services and acknowledges that the use of the Services and the Outputs are in no way intended to replace or substitute for professional or business judgment.

1. Exclusion of Damages.  EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS OR (IV) A PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE CAST IP OR THE PROVISION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
   
   

2. Total Liability.  IN NO EVENT WILL CAST’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, THE CAST IP OR THE PROVISION OF THE SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO CAST IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY CAST TO CUSTOMER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT CAST WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
   
   

3. BASIS OF THE BARGAIN.  THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN CAST AND CUSTOMER AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

1. Term.  The initial term of this Agreement begins on the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue in full force and effect for the initial term set forth in the applicable Order (the “Initial Term”).  Except as otherwise set forth in the applicable Order, following the Initial Term, this Agreement will automatically renew for additional periods of the same length of the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.
   
   

2. Termination.  Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
   
   

3. Survival.  This Section 10(c) and Sections 2, 3(b), 3(c), 3(e), 3(f), 4, 5, 6, 7, 8, 9,  10(d) and 12 survive any termination or expiration of this Agreement. 
   
   

4. Effect of Termination.  Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 3(a) will terminate; and (ii) Customer will return or destroy, at Ephemeral’s sole option, all Ephemeral Confidential Information in its possession or control, including permanent removal of such Ephemeral Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Ephemeral’s request, certify in writing to Ephemeral that the Ephemeral Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.

Each Party will have the right to publicly announce the existence of the business relationship between the Parties. In addition, during the term of Customer’s Use of the Services, Ephemeral may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on Ephemeral’s website and in its marketing materials to identify Customer as Ephemeral’s customer, and for the purpose of providing the Services to Customer, provided that Ephemeral will use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer’s Marks.

1. Entire Agreement. This Agreement, including any Order(s), is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. Ephemeral may amend or modify this Agreement from time to time by providing notice to Customer, including by posting an updated version of this Agreement to the Services or otherwise notifying Customer in writing, and any such amendment or modification will be effective on the date specified in such notice or posting. Customer’s continued use of the Services following the effective date of any such amendment or modification will constitute Customer’s acceptance of the updated Agreement.
   
   

2. Notices.  All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of Customer, and on the next business day if sent after normal hours of Customer; or (v) by posting to the Services.
   
   

3. Waiver.  Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.  No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
   
   

4. Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect. 
   
   

5. Governing Law; Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York and the Parties irrevocably consent to the personal jurisdiction and venue therein.
   
   

6. Assignment.  Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent.  Any attempt to assign or transfer this Agreement without such consent will be void.  Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise.  Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
   
   

7. Equitable Relief.  Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 3(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
   
   

8. Force Majeure.  Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
   
   

9. Subcontracting.  Ephemeral may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Ephemeral remains responsible for the performance of each such Subcontractor.  Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Ephemeral will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Ephemeral.
   
   

10. Relationship of the Parties.  The relationship between the Parties is that of independent contractors.  Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties.  Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
    
    

11. No Third-Party Beneficiaries.  No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.