 indemnifying Party’s expense. The indemnified Party shall have the right to participate in (but not control) the defense of any such Claim, at its sole cost and expense, using counsel of its choosing. The indemnifying Party shall not settle or otherwise compromise any such Claim without the indemnified Party’s prior written consent, which shall not be unreasonably withheld.
EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 9 (CONFIDENTIALITY) OR SECTION 10 (PROPRIETARY RIGHTS), IN NO EVENT WILL EITHER PARTY HEREUNDER BE LIABLE TO THE OTHER FOR ANY LOSS OF BUSINESS, OR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL CHARGES ACTUALLY PAID BY CLIENT TO GRAMMARLY HEREUNDER DURING THE PRECEDING TWELVE MONTHS; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY WITH RESPECT TO (A) ANY LIABILITY FOR PERSONAL INJURY OR DEATH PROVEN TO HAVE RESULTED FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) LIABILITY ARISING FROM A BREACH OF SECTION 9 (CONFIDENTIALITY) OR SECTION 10 (PROPRIETARY RIGHTS), OR (C) CHARGES DUE TO GRAMMARLY HEREUNDER.
The term of this Agreement shall commence on the Effective Date and shall initially continue for a period of twelve (12) months (the “Initial Period”). Thereafter, this Agreement shall automatically renew for successive twelve (12) month periods (each, a “Renewal Period”) unless either Party provides notice of non-renewal to the other Party no later than sixty (60) days prior to the end of the Initial Period or the then-current Renewal Period, as applicable.
Either Party may terminate this Agreement by notice if the other Party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from the non-defaulting Party. In addition, Grammarly may suspend the Service upon notice if Client fails to make any payment required under this Agreement and fails to cure such breach within ten (10) days after receipt of notice of the breach from Grammarly. Any such suspension or termination shall be without limitation of any other right or remedy available to the terminating Party.
Grammarly may terminate this Agreement for convenience upon sixty (60) days’ prior written notice without liability to Client. Following a termination pursuant to this Section, Grammarly shall refund the pro rata portion of any Charges relating to the remaining Initial Period or Renewal Period, as applicable.
If this Agreement is terminated or otherwise expires for any reason: (a) Client shall promptly return to Grammarly or destroy, as directed by Grammarly, all Confidential Information, Software and other materials in Client’s possession or under its control belonging to Grammarly, and all rights and licenses granted by Grammarly pursuant to this Agreement shall terminate. (b) Client shall pay all Charges that have accrued and are owed hereunder within thirty (30) days following any termination or expiration of this Agreement. (c) Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement shall survive any such termination or expiration, including Sections 1, 3.2, 3.3, 4, 6, 7, 8.4, 9, 10, 12 and 13.
Confidentiality. Each Party that receives Confidential Information of the other Party agrees that, unless the disclosing Party gives its prior written authorization, it shall not: (a) use such Confidential Information other than for the purposes of this Agreement; or (b) disclose any such Confidential Information to any third party except those directors, officers and employees of the receiving Party who are required to have such Confidential Information in order to carry out the purposes of this Agreement and who have signed a non-disclosure agreement or are otherwise bound by confidentiality obligations in substance similar to the provisions hereof. The receiving Party shall prevent the unauthorized use, disclosure, dissemination or publication of such Confidential Information with at least the same degree of care that the receiving Party uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Any breach of the confidentiality obligations set forth in this Section 9 would constitute a material breach of this Agreement, which the breaching Party acknowledges would cause irreparable harm to the non-breaching Party, leaving it without an adequate remedy at law. As such, any such breach shall entitle the non-breaching Party to injunctive relief in addition to all other remedies, without necessity of posting of a bond or other security in connection therewith. The preceding sentence is not intended, nor shall it be construed, to limit a Party’s right to dispute the factual basis underlying any contention that it has committed any breach. This Section 9 will remain in effect during the term of this Agreement and for a period of five (5) years following termination or expiration of this Agreement for any reason. In the event that the provisions of this Section 9 are inconsistent with the provisions of any applicable non-disclosure (or comparable) agreement separately executed by the Parties, then the terms of that non-disclosure (or comparable) agreement shall govern.
All Intellectual Property Rights in and to the Client Content are and shall remain the sole property of Client and its Affiliates and licensors, as applicable, and Grammarly shall acquire no right of ownership or use with respect to any Client Content except in connection with its provision of the Service under this Agreement. All Intellectual Property Rights in and to the Grammarly IP are and shall remain the sole property of Grammarly and its Affiliates and licensors, as applicable, and Client shall acquire no right of ownership or use with respect to any Grammarly IP except as specified in Section 3. Without limiting the foregoing, Client acknowledges that the Software and the Service and the inventions, know-how and methodology embodied therein are proprietary to, and contain valuable trade secrets of, Grammarly and its Affiliates and licensors, as applicable, and that the Software constitutes Confidential Information of Grammarly.
Client may from time to time provide Grammarly with suggestions, recommendations and/or feedback regarding the Service, the Software and/or Grammarly’s related technologies (“Feedback”). As between the parties, all Feedback is exclusively owned by Grammarly and Grammarly shall be freely entitled to reproduce, prepare derivative works, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute, and otherwise use and exploit any and all such Feedback as it deems appropriate, at its sole discretion, without obligation or liability of any kind to Client or to any other Persons.
Platform-Based Service. Client acknowledges that the Service is based on a system platform made available by Grammarly to a variety of its clients. Grammarly reserves the right to implement upgrades, updates and modifications to such system platform at any time and from time to time.
Publicity. Client hereby grants Grammarly the right to reproduce and display the Client’s name, logo and trademarks on Grammarly’s website and in brochures and other marketing materials for the purpose of identifying Grammarly’s relationship with Client.
General Provisions. This Agreement, together with the Order(s) and any Special Terms, constitute the entire agreement between Parties with regard to their subject matter and supersede any and all previous communications, whether oral or written, with respect to such subject matter hereof. No waiver or modification of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each Party. Any forbearance or delay on the part of either Party in enforcing any of its rights under this Agreement shall not be construed as a waiver of such right to enforce the same for such occurrence or any other occurrence. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect, and the invalid, illegal or unenforceable provision shall be modified so as to be enforceable to the maximum extent permitted by applicable law, consistent with the intent of the Parties. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to its choice of law principles. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in San Francisco County, California. Each Party agrees to submit to the exclusive jurisdiction of, and agrees that venue is proper in, these courts in any such legal action or proceeding. The foregoing shall not prevent either Party from seeking injunctive relief from any court of competent jurisdiction. Client may not assign or otherwise transfer this Agreement, by operation of law or otherwise, without the prior written consent of Grammarly, except that Client may upon notice assign this Agreement without such consent to an Affiliate, provided no such assignment shall relieve Client of its obligations hereunder. A merger or transfer or assignment by operation of law shall be deemed to constitute a prohibited assignment hereunder. Subject to the foregoing, all provisions contained in this Agreement shall extend to and be binding upon the Parties and their respective permitted successors and permitted assigns. Any attempted assignment or delegation of any rights, duties, or obligations in violation