MARTIAN LEARNING TERMS OF SERVICE

Last Updated: 14/11/2023

 

These Martian Learning Terms of Service (this “Agreement”), together with our Privacy Policy located at Privacy Policy, which is hereby incorporated by reference, govern your (“Customer” or “you”) use of the Services as made available by Martian Learning, Inc. (“Martian”). Martian and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.

 

IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THIS AGREEMENT YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND MARTIAN THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 14 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.

 

1. AGREEMENT TO TERMS AND CONDITIONS.

This Agreement is effective, and Customer agrees to be bound by this Agreement, as of the date (a) Customer first clicks a button titled “Create Account” or something similar, or (b) Customer first uses or accesses the Services, whichever is earlier (“Effective Date”). If Customer is accepting this Agreement on behalf of a company (such as Customer’s employer) or other legal entity, Customer represents and warrants that it has the authority to bind that entity to the terms and conditions of this Agreement. If Customer does not agree to be bound by this Agreement, or does not have the authority to bind such entity to this Agreement, then do not use the Services, or click “Create Account”.  
 

2. DEFINITIONS.

(a) “Account” means an online account registered by Customer for the purpose of using the Services.

 

(b) “Aggregate Data” means any data, data insights, data models or data sets that are derived or aggregated in deidentified form from: (i) any Customer Materials; (ii) Customer’s access to or use of the Services, including, without limitation, any usage data or trends with respect to the Services; or (iii) Input Data and Output Data.

 

(c) “Customer Materials” means all 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 Martian in connection with Customer’s access to or use of the Services, including all Input Data, but excluding, for clarity, any information, data, data models, content or materials owned or controlled by Martian and made available through or in connection with the Services and all Output Data.

 

(d) “Input Data” means all inputs, queries or prompts, and refinements thereto, submitted by Customer using the Services to be submitted to Third-Party Services in connection with delivery of the Services.

 

(e) “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.

 

(f) “Output Data” means all responses, creations or other outputs generated by the Third-Party Services in response to Input Data submitted via the Services on behalf of the Customer.

 

(g) “Martian IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, artificial intelligence and machine learning models, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, 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.

 

(h) “Services” means Martian’s proprietary generative AI model routing services made available by Martian.

 

3. SERVICES; ACCESS AND USE.

(a) Provision of Services. During the Term, and subject to the terms and conditions of this Agreement, Martian hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 15(e)), non-sublicensable, revocable right to use the Services in accordance with the terms of this Agreement.

 

(b) Use Restrictions. Customer will not at any time and will not permit any person to, directly or indirectly: (i) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) copy, modify or create derivative works of the Services, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of 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 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 stores, shares or transmits content which is unlawful, infringing, harmful or that violates any person’s rights, including privacy rights and Intellectual Property Rights, or any other manner or for any other purpose 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) circumvent any access or use restrictions put into place to prevent certain uses of the Services; (viii) attempt to disable, impair, or destroy the Services; or (ix) 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 Martian for use expressly for such purposes; or (x) use the Services, including without limitation any Input Data or Output Data, 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.

 
 

4. THIRD PARTY SERVICES AND SOFTWARE.

The Services are designed to allow Customer to interface or interact with, access and/or use compatible third-party services, products, technology and content, including generative AI tools and related large language models maintained by third parties and the Output Data generated by such AI models and tools (collectively, “Third-Party Services”) through the Services. Martian 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. The Third-Party Services’ terms will govern use of the Third-Party Services, including the rights with respect to Output Data and as between Martian and Customer, subject to applicable law, Martian will pass on whatever rights it has in those Output Data to Customer.

 
 

5. MARTIAN’S INTELLECTUAL PROPERTY RIGHTS.

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

 

(b) Feedback. From time to time Customer or its employees, contractors or representatives may provide Martian with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Customer hereby grants Martian a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Martian’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.

 
 

6. CHANGES TO THE SERVICES AND THIS AGREEMENT.

(a) Changes to the Services. Martian reserves the right to at any time modify or update the Services (or any part or content thereof) without advance notice, and Martian will not be liable to Customer or to any third-party for any modification, price change or suspension of the Services.

 

(b) Changes to this Agreement. This Agreement may be amended or modified by a written document executed by duly authorized representatives of the Parties; however, Martian may also from time to time update, modify or amend this Agreement, which modifications will take effect at the next Renewal Term and will automatically apply as of the renewal date unless Customer elects not to renew pursuant to Section 12(a). In some cases, Martian may specify that amendments or modifications to this Agreement become effective during Customer’s Initial Term or then-current Renewal Term. If the effective date of such modifications is during Customer’s Initial Term or then-current Renewal Term and Customer objects to the modifications, then (as Customer’s exclusive remedy) Customer may terminate Customer’s use of the Services upon notice to Martian as set forth in Section 15(b).

 
 

7. FEES AND PAYMENT.

(a) Fees. Customer will pay Martian usage-based fees at the then-current rates set forth in the pricing page of the Martian website, currently located at https://withmartian.com/plan-pricing (collectively, “Fees”) and without offset or deduction. Martian will issue monthly invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice.

 

(b) Recurring Charges; Payments. If Customer has signed up for automatic billing, Martian will charge Customer’s selected payment method (such as a credit card, debit card, or other method offered by Martian) for any Fees on the applicable payment date, including any applicable taxes. If Martian cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Martian will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, Martian may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution. Payments due to Martian under this Agreement must be made in U.S. dollars. All payments are non-refundable and Customer will not have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to Martian 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 Martian may suspend or terminate Services until all payments are made in full. Customer will reimburse Martian for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. Customer is responsible for providing complete and accurate billing and contact information and to update Martian of any changes to such information.

 

(c) 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 Martian hereunder, other than any taxes imposed on Martian’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Martian hereunder, Customer will pay an additional amount, so that Martian receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

 
 

8. CUSTOMER MATERIALS AND DATA.

(a) Retained Rights in Customer Materials. Martian acknowledges that, as between Customer and Martian and except as set forth in Section 8(b), Customer owns and retains all right, title and interest in and to all Customer Materials.

 

(b) Licenses to Customer Materials. Customer hereby grants Martian a non-exclusive, worldwide, royalty-free right and license, with the right to sublicense: (i) to use, host, reproduce, display, perform, modify, create derivative works based upon, and distribute the Customer Materials for the purpose of hosting, operating, improving and providing the Services and Martian’s other related products, services and technologies, including for research purposes or to train and improve Martian’s artificial intelligence and machine learning models, and (ii) to, during the Term, use and modify Customer Materials in deidentified form for purposes of developing and deriving Aggregate Data.

 

(c) Customer’s Representations. 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 (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement; and (ii) Martian’s use of the Customer Materials 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.

 
 

9. INDEMNIFICATION.

Customer will indemnify, defend (at Martian’s option), and hold Martian and its service providers and affiliates and their respective officers, directors, employees, and agents, harmless from and against any third party claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) any Customer Materials, including, without limitation, (i) any claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (ii) any claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; or (b) access to or use of the Services by Customer in a manner that is not in accordance with this Agreement, including, without limitation, any breach of the license restrictions in Section 3(b). You may not settle or otherwise compromise any claim subject to this Section without Martian’s prior written approval.

 
 

10. DISCLAIMERS.

(a) EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND OTHER MARTIAN IP ARE PROVIDED ON AN “AS IS” BASIS, AND MARTIAN MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER OR TO ANY OTHER PARTY REGARDING THE SERVICES, THE MARTIAN IP OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARTIAN 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, MARTIAN HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.

 

(b) MARTIAN DOES NOT WARRANT OR ENDORSE AND DOES NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGES ARISING FROM ANY THIRD-PARTY SERVICES OR ANY ACTION TAKEN UNDER THE THIRD-PARTY SERVICE’S TERMS. CLIENT ACKNOWLEDGES SOLE RESPONSIBILITY FOR AND ASSUMES ALL RISK ARISING FROM ITS USE OF ANY THIRD-PARTY SERVICES.

 

(c) THE SERVICES ARE DESIGNED TO AUTOMATE AND INCREASE THE EFFICIENCY OF CUSTOMER’S USE OF THIRD PARTY GENERATIVE AI TOOLS. IT IS IMPORTANT TO NOTE THAT, SIMILAR TO ANY NEW TECHNOLOGY THAT LEVERAGES AI MODELS, THE SERVICES HAVE THEIR LIMITATIONS AND POTENTIAL BUGS THAT MARTIAN WANTS TO BE UPFRONT ABOUT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE QUALITY OF THE INPUT DATA WILL IMPACT THE QUALITY OF THE OUTPUT DATA. IF THE INPUT DATA IS INACCURATE, INCOMPLETE, OR INCONSISTENT, THE OUTPUT DATA WILL LIKELY REFLECT THESE DEFICIENCIES. MARTIAN DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF THE OUTPUT DATA OR THAT IT WILL MEET CUSTOMER’S REQUIREMENTS OR ACHIEVE ANY SPECIFIC RESULTS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES BY THE NATURE OF THE SERVICES AND THIRD PARTY SERVICES, OUTPUT DATA MAY CONTAIN INFORMATION THAT IS FALSE, MISLEADING, INACCURATE, OR WHICH INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR OTHER APPLICABLE LAW; AND THAT THE SERVICES AND THIRD PARTY SERVICES MAY PRODUCE OUTPUT DATA FOR THIRD PARTIES WHICH RESEMBLE THE OUTPUT DATA PROVIDED TO CUSTOMER BUT WHICH WERE CREATED USING DIFFERENT INPUT DATA.

 
 

11. LIMITATIONS OF LIABILITY.

(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER MARTIAN NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES WILL BE LIABLE TO CUSTOMER 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 MARTIAN 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.

 

(b) IN NO EVENT WILL MARTIAN’S TOTAL LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, THE MARTIAN IP OR THE PROVISION OF THE SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO MARTIAN IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT MARTIAN OR CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

 

(c) THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 11 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN MARTIAN AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

 
 

12. TERM AND TERMINATION.

(a)   Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the term specified during Customer’s sign up process or, in the event no term was specified when Customer signed up for the Services, at the end of the calendar month during which Customer signed up (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of the same duration as the Initial Term or, if no term was specified when Customer signed up for the Services, one-month periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless, subject to Section 12(b), 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 Initial Term or then-current Renewal Term.

 

(b)   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.

 

(c)   Survival. Sections 1, 2, 3(b), 4, 5, 7 (only for payments due and owing to Martian) 8, 9, 10, 11, 12, 13, 14 and 15 survive any termination or expiration of this Agreement.

 

(d)   Suspension, Limitation or Termination. Martian is entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to any or all of the Services at any time in the event that: (i) Martian reasonably suspects that the Services are being used in violation of any applicable law or regulation or in a manner inconsistent with this Agreement; (ii) Martian determines that the Services are being used in an unauthorized or fraudulent manner; (iii) Martian is prohibited by an order of a court or other governmental agency from providing the Services; or (iv) any other event which Martian determines, in its sole discretion, may create a risk to the Services or to any other users of the Services. Without limitation, Martian will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s right to use the Services in accordance with this Agreement.

 

(e)   Effect of Termination. Upon expiration or termination of this Agreement, the rights granted pursuant to Sections 3(a) will terminate. 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.

 
 

13. GOVERNING LAW AND FORUM CHOICE.

This Agreement and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 14 “DISPUTE RESOLUTION,” the exclusive jurisdiction for all Disputes (defined below) that you and Martian are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Martian each waive any objection to jurisdiction and venue in such courts.

 
 

14. DISPUTE RESOLUTION.

(a)   Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Martian agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that you and Martian are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.

 

(b)   Exceptions. As limited exceptions to Section 14(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.

 

(c)   Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

 

(d)   Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

 

(e)   Injunctive and Declaratory Relief. Except as provided in Section 14(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.

 

(f)   Class Action Waiver.    YOU AND MARTIAN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.

 

(g) Severability. With the exception of any of the provisions in Section 14(f) of this Agreement (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.

 
 

15. GENERAL.

This Agreement constitutes the entire and exclusive understanding and agreement between Martian and you regarding the Services, and this Agreement supersedes and replaces all prior oral or written understandings or agreements between Martian and you regarding the Services. If any provision of this Agreement is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. Except where provided by applicable law in your jurisdiction, you may not assign or transfer this Agreement, by operation of law or otherwise, without Martian’s prior written consent. Any attempt by you to assign or transfer this Agreement absent Martian’s consent or your statutory right, without such consent, will be null. Martian may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their successors and permitted assigns. Martian’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Martian. Except as expressly set forth in this Agreement, the exercise by either Party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent. Unless otherwise expressly provided, no provisions of this Agreement are intended or will be construed to confer upon or give to any person or entity, other than the Parties, any rights, remedies or other benefits under or by reason of this Agreement. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (a) when delivered personally; (b) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (c) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving Party, and on the next business day if sent after normal business hours of the receiving Party; or (d) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either Party to the other Party in accordance with this Section.

 
 

16. CONTACT.

If you have any questions about this Agreement or the Services, please contact Martian at [email protected].