14.1 In accordance with the Digital Millennium Copyright Act (the DMCA), as it relates to online service providers, SendBird, reserves the right to delete or disable digital content a third party alleges to be infringing, and to terminate the accounts of repeat alleged infringers. To review our complete Copyright Dispute Policy and learn how to report potentially infringing content, visit sendbird.com/dmca. To learn more about the DMCA, visit copyright.gov/legislation/dmca.pdf.
14. 2 The SendBird Services and SendBird Proprietary Materials are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). Customer agrees that it will not import, export, re-export, transfer or otherwise use the SendBird Platform or SendBird Proprietary Materials in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the SendBird Platform and SendBird Proprietary Materials, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer will not engage in activity that would cause SendBird to be violation of these laws and regulations, and will indemnify SendBird for any fines, penalties or other liabilities incurred by SendBird for Customer’s failure to comply with this provision.
14.3 The Parties shall perform all of their duties under this Agreement as independent contractors, and nothing in this Agreement shall be construed to give either Party the power to direct or control the activities of the other Party, or to constitute the Parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The Parties understand and agree that neither Party grants the other Party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other Party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other Party, or to transfer, release, or waive any right, title or interest of such other Party.
14.4 Neither this Agreement nor any rights hereunder may be transferred or assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, SendBird may assign or transfer this Agreement or any rights or obligations hereunder without Customer’s consent to a third party acquirer of all, or substantially all, of the assets or business of SendBird, whether by sale, merger, or otherwise. Except as provided in this section, any attempts by either Party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other Party shall be null and void.
14.5 Neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, natural disasters, war, acts of terrorism, strikes, revolutions, lack or failure of third party infrastructure, lack or failure of public or private utilities, laws or governmental regulations (including legislation that makes performance herein impossible, impractical, or economically unreasonable) or any other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than ten (10) days, the Parties hereto shall consult with each other to determine whether this Agreement should be modified or terminated.
14.6 This Agreement shall be governed by and construed under the laws of the State of California and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods, and the parties consent to exclusive jurisdiction and venue of the State or Federal Courts located in San Francisco County, California. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of 30 days after written notice of a dispute has been given by one party hereunder to the other, shall be finally settled by arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS/Endispute (“JAMS”) then in effect, by an arbitrator with substantial experience in resolving complex commercial contract disputes, who will be chosen from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the identity of an arbitrator within 15 days following the arbitration date, then an arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator.
14.7 This Agreement, and any other references, appendices, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties concerning such subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing (aside from an Order Form) that Customer may provide to SendBird or use in connection with the procurement of SendBird Services will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of SendBird to object to such terms, provisions or conditions. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby.
14.8 The waiver by either Party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.
14.9 Any notice required or permitted to be given hereunder will be deemed to have been delivered and given for all purposes: (i) on the delivery date, if delivered by hand courier to the Party to whom such notice is directed; (ii) two (2) Business Days after deposit with a commercial overnight carrier; (iii) five (5) Business Days when mailed by United States mail; (iv) upon completion of transmission, if sent via facsimile with a confirmation of successful transmission; and (v) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim). Suspension-related notices to Customer shall be sent to the account holder designated in the SendBird Dashboard.