Business Service Terms

Last Modified: May 23, 2024

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  1. Engagement

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These Business Service Terms (these “Terms”) apply to your (“you” or “your” or “Host” or “Partner”) use of: (i)  products or services including any content or documentation made available to you which may be embedded on third party websites, blogs, social networking platforms, applications or other third party online services; and (ii) any extensions or derivatives to the foregoing, all of which are owned or operated by MrkStar Inc. (“Versus”). Versus shall provide Partner access to the Versus prediction game platform (“Game Platform”) that creates and manages interactive content (“Games”), and enables end users to play the Games via the Versus Player (“Player”), and Partner shall post the Player  on a variety of digital access points including its websites and applications as mutually agreed in writing (“Placements”), in order to provide the Games to its end users. 

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Please read these Terms carefully. You acknowledge that these Terms form a binding agreement between you and us, and you affirm and signify your consent to these Terms, by either: (i) registering, accessing or using the Services, Player or Games; (ii) clicking on a button or checking a checkbox for the acceptance of these Terms; or (iii) entering into a valid Order Form (as defined below) with Versus in connection to your use of the Services, which incorporates these Terms; whichever is earlier (the “Effective Date”).

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  1. Services, Marketing and Deliverables 

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  1. Responsibilities. Versus shall provide the technology and services detailed in one or more order forms (the “Services”) as follows: the necessary tools and online support for Game Platform, which includes: a) the Player, b) the Games, c) the option to access a website where Games can be manually created, modified and tracked, d) individual links to Games for use on Partner’s websites and socials and e) reporting and other related services. Versus will host the Services and may update the content, functionality, and user interface of the Services from time to time. Partner has a non-exclusive, non-sublicensable, non-transferable right to access and use the Services and display the Versus IP during the applicable order form term, solely for the purpose of hosting Games on the Placements. “Versus IP” means all Versus proprietary materials, including without limitation Versus’ Confidential Information, the software, deliverables, any hardware and/or software used by Versus in performing the Services, Versus’ processes and methods, and any Versus templates and/or forms, including report and presentation templates and forms.

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2.2 Restrictions: Partner’s use of the Services is subject to the following restrictions: a) Partner shall not sublicense, resell, or otherwise transfer the services to any third party without the prior written consent of Versus, b)  Partner shall not modify, adapt, translate, or create derivative works based on the services, except as expressly permitted by Versus in writing, c) Partner shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the services, except to the extent permitted by applicable law, d) Partner shall not use the services in any manner that violates any applicable laws or regulations or infringes upon the intellectual property rights of Versus or any third party, e) Partner shall not use the services to distribute or promote any illegal, offensive, or harmful content, including but not limited to content that is defamatory, obscene, or infringes upon the rights of others.

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2.3 Third-Party Services.  Certain components of the Game Platform may include software licensed from third parties, which may encompass open-source software or related components. Additionally, the Game Platform may feature links to third-party websites, applications, services, materials, products, recommendations, or other events or activities that are neither owned nor controlled by us (collectively referred to as "Third-Party Services").

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2.4 Reservation of Rights. Versus reserves all rights not expressly granted to Partner in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Partner or any third-party any intellectual property rights or other right, title, or interest in or to the Versus IP.

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2.5 Manner of Performance: Versus shall provide the Services in compliance with all applicable laws, rules, regulations, and guidelines (“Applicable Law”). Versus shall ensure that all Games are operated in compliance with the Versus Official Rules (which may be found at https://www.versusgame.com/rules ).  

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2.6 Marketing.  In order to qualify for Fees, Partner are required to (a) publish its Player and Games on the Placements; (b) implement the Versus provided Ads.txt file pursuant to Versus’ technical instructions and any implementation guides made available by Versus Partner will also create and expose a dedicated Versus subdomain on the Placements where an implementation of the Player resides so that Versus may direct end users who are off the Partner’s Domains back to Partner’s website to play more Games, and optionally, in Partner’s sole discretion; (c) actively expose their Games through their various operated and third party marketing and social media channels which include (but are not limited) to the following: (i) the Partner’s website; (ii) any Partner’s third party social media platforms (e.g., Instagram, TikTok, YouTube, Twitter, and Facebook), (iii) link aggregators (e.g. Linktree)  and each of their successor URL’s.  Partner agrees that Versus may use Partner’s name and logo for advertising and publicity purposes and may refer to the existence of this relationship on the Versus Website and in press releases, advertising, or marketing materials distributed to prospective partners, and solely for that purpose Partner hereby grants Versus an irrevocable, perpetual, worldwide license to use Partner’s name, logo, label or any other trademarks or symbols associated with the Partner.

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2.7 Records. Versus shall keep and maintain books, records and documents reflecting the Services and the performance of the Games in sufficient detail so as to enable Partner to evaluate Versus’ compliance with all obligations deriving from the terms of these Terms (the “Records”) throughout the Term of these Terms and two (2) years after expiration or earlier termination of these Terms. During the Term and for two years after the termination of the Agreement, Versus shall maintain the applicable Records and make such Records available for inspection/audit and copying by Partner at reasonable times and upon reasonable notice. Such audit shall be completed by authorized representatives of Partner, including such independent auditors as Partner may designate, during usual business hours, to verify the payments required hereunder, and Partner and its representatives shall use reasonable efforts to minimize any disruptions to Versus’ business. If any legal claim arises with regard to the Services or these Terms, Versus must maintain such Records until the claim is resolved. 

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2.8 Reports. The Partner account will have live real time reports of each game in Versus. 

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  1. Revenue Share

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  1. Fees. Versus and its ad partners will serve Advertisements in the Player and Versus will pay Partner a monthly revenue share equal to 50% of the Net Revenue share from the Advertisements collected from Versus’ ad partners.

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  1. Payments. The fees are payable no later than 15 days after the end of each calendar month.  The fees will be payable to a bank account as instructed by Partner. With each payment, Versus shall deliver a report to Partner with information reasonably necessary for the calculations of such fees. 

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  1. Taxes. Fees are exclusive of Taxes.  “Taxes” means any sales, use and other taxes (other than taxes on Versus’ income), export and import fees, customs duties and similar charges applicable to the transactions contemplated by these Terms that are imposed by any government or other authority. If Partner is legally entitled to an exemption from the payment of any Taxes, Partner will promptly provide Versus with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption.

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  1. Suspension. Notwithstanding anything to the contrary in these Terms, Versus may temporarily suspend Partner’s and any User's access to any portion or all of the Services if: (i) Versus reasonably determines that (a) there is a threat or attack on any of the Versus IP, (b) Partner’s or any User's use of the Services disrupts or poses a security risk to the Services or to any other Partner or vendor of Versus, (c) Partner, or any User, is using the Services for fraudulent or illegal activities, (d) subject to applicable law, Partner has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (e) Versus’ provision of the Services to Partner or any User is prohibited by applicable law; (ii) any vendor of Versus has, through no fault of Versus, suspended or terminated Versus’ access to or use of any third-party services or products required to enable Partner to access the Services (any such suspension a “Service Suspension”). Versus shall use commercially reasonable efforts to provide written notice of any Service Suspension to Partner and to provide updates regarding resumption of access to the Services following any Service Suspension. Versus shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Versus will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Partner or any User may incur as a result of a Service Suspension.

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  1. Confidential Information. From time to time during the term of these Terms, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media that is marked or otherwise designated as “confidential”, “proprietary”, or something similar at the time of disclosure or within a reasonable period of time thereafter and/or would be considered confidential or proprietary by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving party at the time of disclosure; (iii) rightfully obtained by the receiving party on a non-confidential basis from a third-party; or (iv) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (b) to establish a party's rights under these Terms, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date of these Terms and will expire five (5) years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.   

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  1. Participant Information. “Participant Information” means any information provided to Versus by participants in the Game Platform. Versus will own all Participant Information and data captured in the Game Platform. Versus may access, use, retain and disclose Participant Information: (a) in the context of the direct business relationship between Partner and Versus, (b) only in accordance with and for the purposes outlined in these Terms, and (c) in accordance with Applicable Law governing data security, privacy, and information handling, including but not limited to the General Data Protection Regulation (“GDPR”) and California Consumer Privacy Act of 2018, as amended (“CCPA”). Versus shall update, correct, or delete Participant Information in accordance with applicable privacy laws, including upon termination of these Terms Versus shall not transfer Participant Information outside the United States in accordance with applicable privacy laws. Versus and its affiliates shall routinely inspect its operations for self-assessment security compliance reviews. If Versus undertakes any third-party audits such as a SOC 2 Type II audit or similar on its own initiative, Versus shall provide Partner with a copy of the most recent audit report on an annual basis, at Partner’ request. To the extent any unmitigated material risk is identified in any of the above audits, Versus will take appropriate prompt action to remedy such weakness. Versus shall also share the audit report for its hosting provider with Partner upon request, provided Versus is permitted to do so under any applicable confidentiality provisions imposed by its hosting provider. Upon the termination of these Terms, or at any other time that a participant may request, Versus shall immediately destroy (and not keep in Versus’ possession, recreate, or deliver to anyone else) all Participant Information and provide written certification of such action at the request of Partner, unless Versus is required to keep such information pursuant to another provision of these Terms. Versus shall monitor requests it receives from California and European consumers pursuant to those consumers’ rights under the California Consumer Privacy Act of 2018 and GDPR, as amended, concerning the processing of Participant Information (“Consumer Rights Requests”) and shall promptly fulfill those requests. 

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  1. Confidential Terms. Each party shall maintain, and require its respective subsidiaries, officers, directors and/or employees to maintain, the confidentiality of the terms of these Terms and not to disclose the terms without the prior written consent of the other, except that each may disclose such matters to their respective attorneys, tax advisers, lenders, accountants and as otherwise required by law. 

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  1. Information Security. During the term of an order form, Versus will maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Confidential Information and Participant Information (at least as rigorous as the safeguards Versus employs to protect its own data) pursuant to its policies located at https://www.versusgame.com/privacy-policy. 

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  1. Intellectual Property

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  1. Definitions. 

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  1. “Partner Materials” means all information in any form or media as provided by Partner in which Partner owns or has licensed the Intellectual Property Rights, including but not limited to trademarks, service marks, logos, artwork, graphics, clips, photographs, and written copy. Partner Materials also includes custom content created by Versus specifically for Partner with regard to Partner products and in which Partner will own the Intellectual Property Rights.

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  1. “Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise now in existence or hereafter created, related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. 

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  1. “Inventions” means discoveries, concepts, and ideas, whether patentable or not, including but not limited to, apparatus, processes, methods, compositions of matter, techniques, utilities, routines, logic, and formulae, as well as improvements thereto or know-how related thereto, which are made, conceived, created, or acquired by Versus or its officers, employees, agents, and the like in the course of performing Services, excluding Partner Materials.

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  1. “Third-Party Materials” means all information in any form or media, including but not limited to trademarks, service marks, logos, and other content provide by third-party promotion sponsors in which any third party other than Versus or Partner owns any Intellectual Property Rights. 

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  1. “Net Revenue” means revenues attributed to the Partner and collected by Versus, from the sale of ads that were included within the Games and Player displayed on the Placements during the Term, less any taxes, rebates, refunds, bidder fees, revenue share, agency fees, third party fees and commissions, Fraudulent Activity amount and chargebacks, make-goods and/or other set-offs of any kind, and hosting/serving fees if any.

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  1. Ownership. Inventions and all Versus Intellectual Property Rights therein will be the exclusive property of Versus, and Partner hereby assigns to Versus all right, title and interest that Partner may have or may hereafter acquire in all Inventions that the Parties developed while performing the Services pursuant to the terms the Agreement, including all Intellectual Property Rights therein (excluding the rights to any Partner Materials and Partner Intellectual Property Rights that were incorporated in such Inventions). Notwithstanding any other provision of these Terms and for the avoidance of doubt, Versus will own all rights to any customizations, upgrades, enhancements, or any other modifications to the Game Platform (the “Modifications”), even if such Modifications are done at the request of Partner, if Partner pays for such Modifications, and/or if the Modifications are deemed to be within the scope of the Agreement. In no event and under no circumstances will Partner be deemed to own any element of the Game Platform.

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  1. Partner Materials. All rights, title, and interest in and to Partner Materials, and all Partner Intellectual Property Rights therein, will remain the exclusive property of Partner and/or its affiliates. 

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  1. Partner Materials License. Partner hereby grants to Versus the limited, royalty-free, non-exclusive right and license to the Partner Materials solely as necessary to incorporate the Partner Materials into the Game Platform and other creative materials Versus creates and/or uses in connection with the Services. 

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  1. Feedback. If Partner or any of its employees or contractors sends or transmits any communications or materials to Versus by mail, email, telephone, or otherwise, suggesting or recommending changes to the Versus IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Versus is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Partner hereby assigns to Versus on Partner’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Versus is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Versus is not required to use any Feedback. Partner may provide feedback or request the removal of any games by emailing partnersupport@versusgame.com.

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5.6 Content Moderation. Versus may edit, modify, disable access to or remove any Games from our Platform, for any reason, at any time and without prior notice. We also reserve the right to remove or disable access to any content or material posted, uploaded, published or incorporated in or to the Game Platform by any Partners that infringe our policies.

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5.7 Testing. Versus may test changes to the Game Platform, Games, Player and Services. To the extent that Partner controls any testing, Partner shall comply with such testing requests.

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  1. Term and Termination 

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  1. Term. The term of these Terms (the “Term”) will commence on the Effective Date of the initial order form and will remain in effect until terminated, as set forth below. 

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  1. Termination for Convenience. Either party may terminate these Terms for convenience upon 30 days’ written notice to the other party. Following the Effective Date of termination: (a) Versus will not be obligated to continue providing any terminated Services, (b) neither party will have any continuing obligation or liability to the other (for example, for anticipated revenues or profits based upon these Terms or for any costs or expenses incurred in reliance upon these Terms) on account of any termination of the Services.

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  1. Termination for Cause. Either party may terminate these Terms upon the other party’s material breach of these Terms, provided that: (a) the non-breaching party sends written notice to the breaching party describing the breach in reasonable detail, (b) the breaching party does not cure the breach, if curable, within 30 calendar days following receipt of such notice (the “Notice Period”), and (c) following the expiration of the Notice Period, the non-breaching party sends a second written notice to the breaching party indicating the non-breaching party’s election to immediately terminate these Terms. Notwithstanding any provision of these Terms to the contrary, a party may terminate these Terms immediately upon its reasonable determination that the other party has filed for bankruptcy protection or has had an involuntary petition for bankruptcy filed against it, has become unable to pay its bills, has sold or transferred property to creditors, has had a liquidator or receiver appointed by a court, or is a part of any other similar legal proceeding.

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  1. Representations and Warranties 

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  1. Partner. Partner represents and warrants that: (a) it has all necessary right, power and authority to enter into these Terms and to grant the rights set forth herein, (b) the execution of these Terms will not violate or conflict with the rights of any third party, and (c) Partner Materials as provided to Versus will not infringe upon, violate or misappropriate any Intellectual Property Right of any third party or defame or invade the rights of privacy or publicity of any third party.

 

  1. Versus. Versus warrants that the Game Platform will substantially confirm to the documentation.

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  1. EXCEPT AS SET FORTH HEREIN, ALL VERSUS IP PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION THE SERVICES, IS PROVIDED "AS IS" AND VERSUS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. VERSUS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING, USAGE, OR TRADE PRACTICE. VERSUS MAKES NO WARRANTY OF ANY KIND THAT THE VERSUS IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET HOST’S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

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  1. Indemnification

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8.1 Versus. Versus shall defend, hold harmless, and indemnify Partner, its parents, affiliates, and subsidiaries and their respective directors, officers, employees, agents, and assigns (the “Partner Indemnified Parties”), from and against all claims, suits, actions, demands and proceedings of any kind threatened, asserted or filed against Partner and/or any of the Partner Indemnified Parties by any third party (collectively “Claims”), and any damages, losses, expenses, liabilities, or costs of any kind, (including but not limited to attorneys’ fees, witness fees and court costs) incurred in connection with such Claims (including those necessary to successfully establish the right to indemnification), arising out of or relating to any allegation that the Game Platform or Services (excluding Third Party Services) infringe upon, violate, or misappropriate any Intellectual Property Right of any third party or defame or invade the rights of privacy or publicity of any third party.  The foregoing obligation shall not apply with respect to any Third-Party Claim based in whole or in part upon: (i) VersusVersus’ compliance with Partner’s specifications; (ii) Partner’s use of the Services in combination with data, software, hardware, equipment, or technology not provided or authorized by Versus; or (iii) Third-Party Products. If the Services or any component thereof become, or in the opinion of Versus are likely to become, the subject of a Third-Party Claim (each an “Allegedly Infringing Item”), then Versus will use reasonable efforts, at its cost and expense, to: (a) procure for Partner the right to continue using the Allegedly Infringing Item at no additional cost to Partner; (b) replace or modify, in whole or in part, the Allegedly Infringing Item to make the Services no longer infringing; or (c) if neither (a) nor (b) are reasonably commercially available to Versus and the Allegedly Infringing Item is a material part of the Services, either Party may terminate the Agreement, effective immediately on written notice, and Versus will provide to Partner a refund of Fees prepaid for the remainder of the then-current order form term.

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  1.  Partner. Partner shall defend, hold harmless and indemnify Versus, and its directors, officers, employees, agents and assigns from and against all Claims and any damages, losses, expenses, liabilities, or costs of any kind, (including but not limited to reasonable attorneys’ fees, witness fees and court costs) incurred in connection with such Claims (including those necessary to successfully establish the right to indemnification), arising out of or relating to any allegation that the Partner Materials as provided to Versus in accordance with these Terms infringe upon, violate, or misappropriate any Intellectual Property Right of any third party or defame or invade the rights of privacy or publicity of any third party.

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  1. Procedure. The party seeking indemnification (the “Indemnitee”) will give sole control over the defense and settlement of the Claim to the party providing indemnification (the “Indemnitor”). The Indemnitee will provide the Indemnitor reasonably prompt written notice of any such Claims, although Indemnitee’s failure to provide prompt notice of a Claim will not relieve Indemnitor of its duty to indemnify unless Indemnitee is materially prejudiced by the delay. Indemnitee will provide reasonable information and assistance, at its own expense, to help the Indemnitor defend the Claims. The Indemnitor will not have any right, without the Indemnitee’s written consent, to settle any such claim if such settlement imposes any obligation of any kind on the other Indemnitee without the Indemnitees prior written consent, not to be unreasonably withheld, conditioned, or delayed.

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  1. Limitation of Liability

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EXCEPT FOR THE PARTIES’ RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER OR A VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BY LIABLE UNDER THESE TERMS TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

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  1. Insurance 

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Each party will maintain industry standard levels of insurance coverage throughout the duration of these Terms. 

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  1. Relationship of Parties 

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The parties are and at all times shall be and remain independent contractors as to each other, and at no time shall either Party be deemed to be the agent or employee of the other.  No joint venture, partnership, agency, or other relationship shall be created or implied as a result of these Terms. Furthermore, neither party shall have the authority to, and shall not purport to, enter into any contract or commitment on behalf of the other party.

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  1. Miscellaneous

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  1. Notice. Any notice, consent or other communication or documentation required or permitted under these Terms must be given in English by any commercially reasonable written or electronic means and will be deemed given when delivered in person, when electronic delivery is confirmed, when delivered by any reputable courier service or seven days after being sent by registered or certified U.S. mail, postage prepaid, return receipt requested. Notice to Partner must be sent to the address listed on the order form. Notice to Versus must be sent to John Vitti, Mrktstar, Inc 584 Castro #2012, San Francisco, CA 94114-2512.

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  1. Assignment. Partner may not assign these Terms (whether expressly, by implication, or by operation of law, including in connection with any merger or sale of assets or business), or delegate its performance under these Terms (either in whole or in part), to any third-party without obtaining VersusVersus’ prior written consent. Versus may assign these Terms or any rights granted herein. Any purported transfer, assignment, or delegation in violation of this Section shall be null and void when attempted and of no force or effect.  Subject to the foregoing, these Terms shall bind and inure to the benefit of the successors and permitted assigns of Versus and Partner.

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  1. Entire Agreement. These Terms, including the order form, constitutes the entire agreement and understanding between the parties regarding the subject matter of these Terms and supersedes all prior or contemporaneous agreements and understandings whether written, oral, or implied between Partner and Versus.

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  1. Amendment. Except as stated herein, these Terms may not be amended, superseded, or altered, and no agreements among or consents of Partner and Versus will be effective hereunder, except by an instrument in writing duly executed and delivered on behalf of Partner and Versus.

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  1. Waiver. No failure or delay on the part of Partner or Versus to exercise any right, privilege, or power under these Terms will operate as a waiver or relinquishment of such right, privilege, or power. 

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  1. Severability. The provisions of these Terms are separate and divisible and if any court of competent jurisdiction determines that any provision of these Terms is void and/or unenforceable, the remaining provision or provisions will be construed as if the void and/or unenforceable provision or provisions were not included in these Terms. 

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  1. Survival. Except as expressly provided herein, the termination of these Terms will not in any way affect any obligations under these Terms that are expressly stated to be continuing or are by their nature continuing. 

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  1. Publicity. Versus shall not use Partner’s name or any of its trademarks, trade names, logos or other proprietary information or intellectual property for publicity without the prior written consent of Partner.

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  1. Governing Law and Venue. These Terms will be governed by and construed in accordance with the laws of the State of Delaware, without reference to its conflicts of laws principles. Any litigation of disputes arising out of or otherwise relating to these Terms must take place in a federal or state court of competent jurisdiction located in New York County, New York. 

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  1. Counterparts. These Terms may be executed in counterparts, each of which will be deemed an original but all of which taken together will constitute one instrument. A facsimile or emailed “PDF” of an executed counterpart of these Terms will be deemed to constitute due and sufficient delivery of an original of these Terms.

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  1. Force Majeure. Either party will be excused from performance of its obligations under these Terms if such party suffers a force majeure event, which will mean and be limited to an event that is caused by an act of God, epidemic, earthquake, fire, flood, war, terrorism, riot, civil disorder, government regulation or action or other substantially similar cause, and that could not have been prevented or circumvented by reasonable precautions or commercially accepted processes of the party experiencing the force majeure event; provided that a party that suffers a force majeure event shall inform the other party of such event as quickly as reasonably possible upon the occurrence of such event and shall take all reasonable steps to remedy the situation so that it is again able to perform its obligations under these Terms; and provided further, that if a party remains unable to perform under these Terms as a result of a force majeure event for a period longer than 30 days, the other party will have the right to immediately terminate these Terms.

‍12.12 Third-Party Rights. Other than as expressly set out in these Terms, these Terms does not create any rights for any person who is not a Party to it and no person who is not a party to these Terms may enforce any of its terms or rely on any exclusion or limitation contained in it.