This Mazzaroth License and Services Agreement (“Agreement”) is entered into by and between Kochava Inc. (“Kochava”) and the entity or person accessing the Mazzaroth Platform and agreeing to the terms contained herein (“Company”). Company represents that the individual accessing the Mazzaroth Platform and agreeing to this Agreement is authorized to accept this Agreement on behalf of Company. The “Effective Date” of this Agreement is the date on which Company clicks-through and accepts the terms of the Agreement via the Mazzaroth Platform or other applicable registration process. Kochava and Company may be referred to herein collectively as the “Parties” and individually as a “Party.”
WHEREAS Kochava provides the Mazzaroth framework and software for cross-platform application development, as well as access to the DLT Binary, Wallet, and M8 (all hereinafter defined).
WHEREAS Company desires to acquire access to the Mazzaroth framework and software to aid in Company’s development, deployment, implementation, and use of certain smart contracts.
WHEREAS Company desires to license the Mazzaroth framework and software solutions from Kochava, and Kochava desires to grant a license to such framework and software solutions to Company pursuant to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the following mutual covenants and agreements, and for other good and valuable consideration, the Parties hereby agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms will have the meanings ascribed to them below.
1.1 “Company Data” means any data or information that Company submits or uploads to the Mazzaroth Platform, including any Transaction data.
1.2 “Company Employees” means an employee of Company authorized to use the Software.
1.3 “Confidential Information” means any information disclosed by one Party to the other, which, (i) if in written, graphic, machine readable or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential and reduced to a writing marked “Confidential” and delivered to the receiving party within thirty (30) days of such disclosure; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Notwithstanding any failure to so identify them, all technology or proprietary information underlying the Software and Mazzaroth Platform shall be deemed Confidential Information of Kochava, and all Company Data shall be deemed Confidential Information of Company.
1.4 “DLT Binary” means the local binary enabling developers to launch Mazzaroth on the developer’s workstation.
1.5 “Documentation” means any documentation provided by Kochava for use with the Software under this Agreement.
1.6 “Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any Software therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, softwares, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
1.7 “Licensed Materials” means the Software and the Documentation.
1.8 “M8” means the open-source software enabling developers to interact with Mazzaroth nodes such as by sending transactions and reading requests.
1.9 “Mazzaroth” means the distributed ledger platform comprising Kochava’s application framework for cross-platform development.
1.10 “Mazzaroth Platform” means the online platform available at mazzaroth.io through which Company can gain access to the Software.
1.11 “Software” means, collectively, the DLT Binary, Wallet, and M8.
1.12 “Transaction” means any transaction, query or other instruction submitted by Company to Kochava during the course of this Agreement’s performance, whether through the Mazzaroth Platform or by other means.
1.13 “Wallet” means the downloadable binary enabling developers to build advanced functionality for end users to interact with smart contracts such as allowing end users to send and receive tokens, mint non-fungible tokens, set token caps, and more.
2. PLATFORM
2.1 Overview. Mazzaroth enables developers to carry out a wide variety of functions. Through the Mazzaroth Platform, Company may access and download the DLT Binary, the Wallet, and M8, as well as other applications and software as Kochava may release from time to time.
2.2 Account Registration. Company may be required by Kochava to create a user account to access and use the Mazzaroth Platform (“User Account”). Company is solely responsible for all activities occurring under its User Account and for maintaining the confidentiality and security of its username and password, if applicable.
2.3 Modification of Mazzaroth Platform. Kochava makes continuous improvements to the Platform and will notify Company in the event of any material modification that may negatively impact Company’s use of the Mazzaroth Platform or Software. Kochava reserves all rights to modify the Mazzaroth Platform in its sole discretion.
3. SOFTWARE
3.1 DLT Binary and Wallet Licenses. Kochava hereby grants to Company a limited, non-exclusive, non-transferable, non-sublicensable, worldwide license to access, download, and use the DLT Binary and Wallet along with any accompanying Documentation solely for Company’s internal uses. Notwithstanding the foregoing, Kochava grants Company the right to sublicense the Software to Company’s end-users only when Company’s own software is built to include Kochava’s Software. This sublicense grant expressly excludes Company from allowing end-users to further sublicense any Kochava intellectual property including but not limited to the Licensed Materials or any other element of Mazzaroth or the Mazzaroth Platform.
3.2 DLT Binary and Wallet Restrictions. Company shall not, and shall not permit any third party to: (i) rent, lease, provide access to or sublicense the Licensed Materials to a third party; (ii) use the Licensed Materials to provide its own ledger service, software, or other services similar to the Software to a third party or include the Licensed Materials in any service bureau or outsourcing offering; (iii) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to Kochava); (iv) copy or modify the Licensed Materials, or create any derivative work from any of the foregoing; (v) remove or obscure any proprietary or other notices contained in the Licensed Materials (including any reports or data printed from the Licensed Materials); (vi) publicly disseminate information regarding the performance of the Mazzaroth Platform; (vii) use the Software or Mazzaroth Platform in any manner that may give rise to civil or criminal liability or other damages; or (viii) use the Software or Mazzaroth Platform in any manner that may damage, disable, overburden, or impair the Software or Mazzaroth Platform.
3.3 M8 License. The Parties acknowledge the M8 uses open-source software and may be subject to open-source terms independent of this Agreement. As such, M8 is made available to Company under all applicable open-source terms and is in no way subject to the terms of this Agreement to the extent the terms of this Agreement are in conflict with any open-source terms applicable to M8. For example, the restrictions outlined in Section 3.2, above, do not apply to M8 to the extent Section 3.2’s restrictions are inconsistent with M8’s open-source terms.
3.4 Reservation of Rights. Kochava reserves all rights to Mazzaroth, Software (excluding M8), or Documentation not otherwise expressly granted in this Section 3.
4. COMPANY DATA (the terms and conditions contained in this Section 4 only have effect if Company sends Kochava any Company Data for processing).
4.1 Rights in Customer Data. As between the parties, Company shall retain all right, title and interest (including any and all Intellectual Property Rights) in and to the Company Data as provided to Kochava. Subject to the terms of this Agreement, Company hereby grants to Kochava a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, display, modify, and create derivative works of the Company Data in order for Kochava to carry out its obligations pursuant to this Agreement.
4.2 Storage and Processing of Customer Data. Company Data may be stored and processed by Kochava or Kochava’s third party vendors in the United States or in other countries anywhere in the world in which Kochava or its vendors maintain facilities.
4.3 Exporting Customer Data to Third Parties. The services provided for under this Agreement may contain features or functionality allowing Company to share Company Data directly with third-party products or services chosen by Company, such as data warehouses maintained by Company (“Third Party Products”). Kochava has no responsibility or liability for Third Party Products, including for their interoperability, security, functionality, operation, or integrity or for any use of Company Data by Third Party Products.
4.4 No Sensitive Data. Company specifically agrees not to submit to the Mazzaroth Platform or otherwise to Kochava: (i) any personally identifiable information, other than account registration information required to establish Company’s account, (ii) full or partial social security numbers (SSNs) or other government-issued ID data; (iii) any bank account or routing numbers or any credit, debit or other payment card information subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (iv) any patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act, as supplemented and amended (“HIPAA”); or (v) any other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, the Fair Credit Reporting Act, or other Laws ((i)-(v), collectively, “Sensitive Data”). Company acknowledges that Kochava is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that Kochava in no way holds out that the services provided for in this Agreement are HIPAA or PCI DSS compliant. Kochava shall have no liability under this Agreement for Sensitive Data, notwithstanding anything to the contrary herein. Kochava reserves the right (but has no obligation to) to modify or remove any Company Data submitted to the Mazzaroth Platform or otherwise to Kochava in breach of any provisions contained in this Agreement.
4.5 Representations & Warranties. Company represents and warrants to Kochava that Company has sufficient rights in the Company Data to grant the rights granted to Kochava in Section 4.1 (Rights in Customer Data) above and that the Company Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.
5. COMPANY RESPONSIBILITIES
5.1 Company will cooperate in setting up the Software as reasonably requested by Kochava.
5.2 Company will be responsible for obtaining and maintaining at Company’s expense all the necessary computer hardware, software, modems, connections to the Internet and other items required to access the services provided for in this Agreement.
6. RIGHT TO MONITOR
Kochava will have the right to review and monitor all use of Mazzaroth and the Software to ensure compliance with the terms of this Agreement.
7. OWNERSHIP
7.1 Company. As between Company and Kochava, Company shall retain all right, title and interest in and to the Company Data and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Kochava any right of ownership or interest in the Company Data or the Intellectual Property rights therein.
7.2 Kochava. As between Company and Kochava, Kochava shall retain all right, title and interest in and to the Licensed Materials (excluding M8), Mazzaroth, and the Mazzaroth Platform, any changes, corrections, bug fixes, enhancements, updates and other modifications thereto, and all Intellectual Property Rights therein, and as between the parties all such rights shall vest in and be assigned to Kochava. Nothing in this Agreement will confer on Company any right of ownership or interest in the Licensed Materials, Mazzaroth, the Mazzaroth Platform, or the Intellectual Property rights therein.
8. PAYMENT; TAXES
8.1 License Fees. In consideration for the license granted by Kochava under this Agreement, Company shall pay Kochava the fees (“License Subscription Fees”) in the amount set forth on the pricing page in accordance with the terms set forth therein. License Subscription Fees are non-refundable.
8.2 Taxes. Company shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Kochava’s net income. Company agrees to indemnify, defend, and hold Kochava, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Company’s failure to report or pay any such taxes, duties or assessments.
8.3 Payment Terms. All amounts payable to Kochava under this Agreement will be paid according to the pricing and payment terms, as Kochava may update them from time to time. If not otherwise specified, all amounts invoiced to Company by Kochava in accordance with this Section 8 are payable within seven days of delivery of the invoice. Kochava may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. Any change to Kochava’s pricing or payment terms shall become effective in the billing cycle following notice of such change to Company as provided in this Agreement. Overdue payments will be subject to interest at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is less.
9. TERM; TERMINATION
9.1 Term. Unless earlier terminated as provided in this Section, this Agreement will have an initial term of one month (the “Initial Term”), which shall commence on the Effective Date and shall thereafter automatically renew for additional 1-month periods (any such “Renewal Term,” together with the Initial Term, the “Term”) unless either party provides written notice of its intention not to renew to the other party, which will be effective upon receipt by such Party.
9.2 Termination. This Agreement may be terminated immediately by either Party for convenience upon written notice to the other Party.
9.3 Effect of Termination. Upon termination of this Agreement, each Party shall promptly return, or at the other Party’s request destroy, all Confidential Information of the other Party (including without limitation the Company Data and the Documentation) except that Company may retain the Software integrated with the Company Data, where the combination have already been installed by Company’s end-users. Sections 1, 5.2, 8, 9.3, 10.2(b), and 11-14 shall survive termination of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement shall expire upon termination of this Agreement, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination.
10. CONFIDENTIALITY
10.1 Nondisclosure. Each Party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes; shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know; and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
10.2 Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
10.3 Remedies. The Receiving Party agrees that a breach of this Section 10 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
11. WARRANTY DISCLAIMER
THE SERVICE, SOFTWARE, MAZZAROTH PLATFORM, IMPLEMENTATION ASSISTANCE, AND ALL RELATED SERVICES PROVIDED BY KOCHAVA ARE PROVIDED “AS IS” AND WITH ALL FAULTS, AND USE IS AT COMPANY’S SOLE RISK. NEITHER KOCHAVA NOR ITS SUPPLIERS MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. KOCHAVA DOES NOT WARRANT THAT COMPANY’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES KOCHAVA WARRANT THAT IT WILL REVIEW THE COMPANY DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE COMPANY DATA WITHOUT LOSS. KOCHAVA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF KOCHAVA. COMPANY MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
12. LIMITATION ON DAMAGES
12.1 EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. EXCEPT FOR BREACH OF SECTION 3 AND SECTION 10 AND INDEMNIFICATION FOR THIRD-PARTY DAMAGES ARISING UNDER SECTION 13 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE.
12.2 MAXIMUM AGGREGATE LIABILITY. EXCEPT FOR BREACH OF SECTION 3 OR SECTION 10 AND INDEMNIFICATION LIABILITY ARISING UNDER SECTION 13 OF THIS AGREEMENT, THE MAXIMUM LIABILITY OF EITHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS MADE UNDER THIS AGREEMENT IN THE ONE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY. USER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. INDEMNIFICATION
13.1 Indemnification. Each Party shall indemnify, defend and hold the other Party and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses arising from a claim that Mazzaroth (as to Kochava), or the Company Data (as to Company) violates any applicable statute, regulation, or law, or infringes any intellectual property right or other legal right of any third party (a “Claim“). This indemnity does not apply to, and Kochava will have no obligation to the Company for, any infringement or misappropriation claim that arises from (i) modifications to Mazzaroth, the Mazzaroth Platform, or the Licensed Materials by anyone other than Kochava, (ii) modifications to Mazzaroth, the Mazzaroth Platform, or the Licensed Materials based upon specifications furnished by the Company, (iii) Company’s use of Mazzaroth, the Mazzaroth Platform, or the Licensed Materials other than as specified in this Agreement or in the applicable Documentation, (iv) use of Mazzaroth, the Mazzaroth Platform, or the Licensed Materials in conjunction with third-party software, hardware or data other than that approved by Kochava, or (v) any combination of the foregoing. Company shall indemnify, defend and hold Kochava and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses to the extent they arise from any Claim based on any of the factors in the foregoing sentence, and shall give Kochava all reasonable information and assistance regarding such claim.
13.1 Indemnification Procedure. The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim; provided that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any Claim; provided, however, that (i) the indemnifying Party shall keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of such litigation or settlement and (ii) the indemnifying Party shall not settle any such Claim in a manner that does not unconditionally release the indemnified Party without the indemnified Party’s written consent, not to be unreasonably withheld or delayed.
13.2 Infringing Materials. In the event any portion of Mazzaroth is held or believed by Kochava, or any portion of the Company Data is held or believed by Company, to infringe or misappropriate Intellectual Property Rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where Mazzaroth is used or accessed, then, in addition to any other rights in this Section 13, Kochava (where the Infringing Materials are Mazzaroth) or Company (where the Infringing Materials are the Company Data) shall, at its sole expense and at its option: (i) obtain from such third party the right for the other party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate this Agreement.
13.3 SOLE REMEDY. THIS SECTION 13 SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.
14. MISCELLANEOUS
14.1 Digital Signature Provision. Company represents and warrants that the individual electronically agreeing to the terms of this Agreement is empowered to agree to this Agreement on behalf of Company. Company further agrees that the act of clicking the “AGREE” check-box constitutes an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act and that the Agreement is completely valid, has legal effect, is enforceable, and is binding on, and non-refutable by, Company.
14.2 Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, Kochava may, without the consent of Company, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement.
14.3 Entire Agreement. This Agreement, and any exhibits and amendments thereto, constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties.
14.4 Force Majeure. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.
14.5 Governing Law; ADR; Dispute Limitation. To the fullest extent permitted by law, this Agreement is governed by and construed in accordance with the laws of the State of California, USA, without regard to its conflicts of law principles or provisions. With the exception of a claim relating to Section 8 (Payment; Taxes) the Parties shall submit all disputes, controversies, or claims arising out of or relating to this Agreement to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. One arbitrator shall finally determine the arbitration, and judgment on the award rendered may be entered in any court of competent jurisdiction. If a dispute is brought in Spokane, Washington, each party hereby irrevocably consents to the jurisdiction and venue of the courts and arbiters located therein. Notwithstanding the forgoing, this Section 14.5 in no way prohibits a party from bringing a dispute in any jurisdiction that has proper authority. Without limiting the foregoing, in the event of a breach of this Agreement by Company, Kochava may seek injunctive relief or a temporary restraining order in any court of competent jurisdiction without first resorting to arbitration if Kochava deems in good faith that such a remedy is necessary. COMPANY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL. Any claim arising out of or relating to this Agreement or the use of the Mazzaroth Platform or Software must be filed within one year after the event giving rise to it, or the claim is forever barred.
14.6 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested), and on the date the notice is sent when sent by verified facsimile, in each case to the respective Parties at the address first set forth hereto. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this section. Notices will be deemed in compliance with this Section 14.6, and delivered on the date sent, if sent by e-mail to the following e-mail addresses: for Kochava, legal@kochava.com; for Company, if Company so desires, the e-mail address made known to Kochava by Company in an email from Company to legal@kochava.com specifically referencing this Section 14.6 and identifying the e-mail address Company wishes to be used for notices.
14.7 Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
14.8 Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
14.9 Modification, Waiver. From time to time, Kochava may modify this Agreement by posting any such modifications at the following URL: https://www.kochava.com/mazzaroth-license-service-agreement/. Notwithstanding Section 14.6, the Parties acknowledge and agree that posting changes at this URL satisfies the requirement, if any, to provide notice to Company. Company may not modify this Agreement without the prior written consent of Kochava. Any modification by Company without prior written consent from Kochava is void. No failure or delay by a Party in exercising any right, power, or remedy under this Agreement operates as a waiver of any such right, power, or remedy. A waiver of one provision is not a waiver of any other provision. A waiver does not operate as a waiver of any future event. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.
14.10 Headings. The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.
14.11 Counterparts. This Agreement may be executed in a number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
