Terms of Service

Welcome to MOLTEN INC.

At MOLTEN INC. (“MOLTEN” or “we”) we are dedicated to simplifying media operations to help media content rights holders effectively manage and monetize their content and rights. By signing a MOLTEN Order Form, the individual or entity that is a party to the Order Form (“you”) is agreeing to these Customer Terms of Service (“Customer Terms”). In these Customer Terms, we refer to all Order Forms and these Customer Terms together as the “Agreement.”

1. Our Services.

Our services include the subscription services provided through the MOLTEN Platform and professional services. Your Order Form(s) identifies which of our services will be provided to you (collectively, the “Services”).

1.1 The MOLTEN Platform.

The MOLTEN Platform is a remote, cloud-based, modular platform that allows customers to upload, manage, and share media content (“Content”) and Content rights data, as further described at /company (the “MOLTEN Platform”). The MOLTEN Platform may include components on multiple websites managed or owned by MOLTEN, including but not limited to moltenrights.com, molten.co, www.moltencloud.com, moltentrade.com, moltenexchange.com, and molten.tv. During the term of your applicable Order Form (“Order Term”), you and your employees, consultants and contractors (collectively, “Authorized Users”) are authorized to access and use the features of the MOLTEN Platform identified in your Order Form. Access and use of the MOLTEN Platform is not transferable or sublicensable and you are responsible for your Authorized Users’ use of the MOLTEN Platform. To the extent we provide any downloadable software, you may access and use such software only during the applicable Order Term.

You may additionally share access to certain Content, reports or data with your business associates (“Business Associates”), by utilizing the sharing features made available to you on the MOLTEN Platform. Your Authorized Users and Business Associates may be required to agree to our End User Terms of Service as a condition of their access and use of the MOLTEN Platform, and we may deny access and use to any Authorized User or Business Associate that fails to agree to our End User Terms of Service, or violates our End User Terms of Service.

1.2 Use Restrictions.

You shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) upload to the MOLTEN Platform any malicious code or viruses; (iv) remove any proprietary notices from the Services or documentation; or (v) use the Services or Documentation 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 violates any applicable law.

1.3 Content Restrictions.

You agree not to provide, upload, or make available Content that:

• Includes pornography;
• Is illegal, for example, child pornography;
• Incites violence; or
• Encourages hate.

1.4 Suspension.

Notwithstanding anything to the contrary in this Agreement, we may temporarily suspend your and any Authorized User’s access to any portion or all of the Services, for a commercially reasonable period of time, if :(i) we reasonably determine that (A) there is a threat or attack on any of the MOLTEN Property (as defined below); (B) your or any Authorized User’s use of the MOLTEN Platform disrupts or poses a security risk to the MOLTEN Property or to any other customer or vendor of MOLTEN; (C) you, or any Authorized User, is using the MOLTEN Property for fraudulent or illegal activities; or (ii) any vendor of ours has suspended or terminated our access to or use of any third-party services or products required to enable Customer to access the Services; (D) your account has an open balance of unpaid invoices that are past 14 days. We will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you or any Authorized User may incur as a result of a suspension under this paragraph.

1.5 Professional Services.

Our professional services, such as consulting, implementation, and onboarding of Content and data are designed to assist you with the use of the MOLTEN Platform and we retain all interest in our professional services.

1.6 Support and Cooperation.

You may reach us for technical support at any time by emailing [email protected]. Our technical support team works diligently to ensure your inquiries are addressed promptly, and we seek to respond to inquiries and begin work towards a resolution within one business day. Resolution times may vary based on factors, including but not limited to, the complexity of the issue and volume of support requests. You agree to cooperate with our reasonable requests throughout the applicable Order Term, to facilitate the performance of our Services.

1.7 MOLTEN APIs.

You may request that MOLTEN makes one or more MOLTEN APIs available to you. MOLTEN will use commercially reasonable efforts to honor such requests and MOLTEN reserves the right to charge a reasonable development, usage, and/or support fees, to be agreed upon by the parties in writing, to the extent any development work is required. The MOLTEN API(s) we make available to you shall be a component of the MOLTEN Platform.

2. Customer Data and MOLTEN Property.

You retain all right, title and interest, including all intellectual property rights, in and to all information, data, and other Content provided or made available by you or your Authorized Users to enable the provision of Services (“Customer Data”). Customer Data does not include information and metadata related to your, your Authorized Users’, or your Business Associates’ use of the Services that is used by MOLTEN in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Resultant Data”). You grant to us a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Customer Data: (i) in aggregate an anonymized form, for any reason, including to compile and disclose macro-analytics and industry trends; (ii) and perform all acts with respect to Customer Data as may be necessary for us to provide the Services to you.

We own all right, title and interest, including all intellectual property rights, in and to the Services, the MOLTEN Platform, the Resultant Data, and any software, applications, inventions or other technology developed in connection with Integration Services or support (collectively, the “MOLTEN Property”). For the avoidance of doubt, MOLTEN Property does not include Customer Data. If you or your Authorized Users choose to give us feedback, such as suggestions to improve the Services or the MOLTEN Platform, we may act on such feedback without limitation and without obligation to you or your Authorized Users.

No rights or licenses are granted by this Agreement except for the limited licenses expressly granted in this Agreement.

2.1 Onboarding and Accuracy of Customer Data.

Onboarding of Customer Data, including Content, Content rights data, and/or financial data, as applicable, is necessary for effective use of the MOLTEN Platform. We will use commercially reasonable efforts to onboard the applicable Customer Data during the onboarding period identified in the applicable Order Form (the “Onboarding Term”).

You agree to cooperate with our onboarding efforts by providing all Customer Data in a coherent and structured format, according to the specifications set forth in our applicable technical documentation. It is your sole responsibility to ensure the accuracy of all Customer Data uploaded by you or onboarded by us to the MOLTEN Platform. We have no obligation to review Customer Data for accuracy or completeness and we disclaim all liability related to the accuracy or completeness of Customer Data, notwithstanding the fact that we may, in our sole discretion, notify you if we become aware of inaccurate or incomplete Customer Data. For the avoidance of doubt, we do not review or process Content rights contracts and it is your sole responsibility to ensure that your Customer Data accurately reflects the terms of such contracts.

You agree that the Onboarding Term and any fees associated with onboarding were determined based on our understanding of the volume, format, structure, and types of Customer Data to be onboarded, as represented by you. Any additional onboarding of Customer Data is solely your responsibility. If we determine, in our reasonable discretion, that any of your representations regarding Customer Data to be onboarded were not accurate or that onboarding is not commercially reasonable due to unforeseen technical reasons, we may terminate the applicable Order Form, immediately upon notice to you, in which case we will refund to you any pre-paid subscription fees as well as a pro-rated amount for any onboarding Services not-yet rendered. 

2.2 Customer Data Consents and Removal of Customer Data.

You represent, warrant, and covenant that, you own or otherwise have and will have the necessary rights and consents in and relating to the Customer Data, and have provided all necessary notices related thereto, so that, as received by us and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights or privacy rights of any third-party. We may remove Customer Data from the MOLTEN Platform if we determine, in our sole discretion, or a third party alleges, that you do not have the rights or consents necessary for such Customer Data.

2.3 Customer Initiated Sharing of Customer Data.

MOLTEN may provide template files (“Supported Templates”) to facilitate your sharing of Customer Data with Business Associates, for example, a template XLSX file for sharing avails with a particular streaming platform. MOLTEN does not guarantee that such templates will be compatible with the current requirements of the Business Associate, and it is the Customer's sole responsibility to verify the compatibility of a template prior to sharing Customer Data.

MOLTEN offers a finite set of Supported Templates, subject to modification at our sole discretion, including, but not limited to, the addition, removal, or alteration. Customer requests for additions or alterations to templates shall be classified as engineering development, subject to separate scoping and pricing. If Customer requests a new template specific to a Business Associate, the Customer must provide MOLTEN with an authorized Business Associate point of contact to facilitate accurate template development and testing. Templates developed by MOLTEN, irrespective of origin or purpose, constitute MOLTEN's exclusive intellectual property and may be incorporated into the MOLTEN product suite at our discretion.

2.4 Delivery of Content.

You may initiate the delivery of certain Content for various destinations (“Supported Destinations”) through the MOLTEN Platform. It is your responsibility to accurately identify the Content and the recipient therefore through the MOLTEN Platform. By requesting Content delivery, you authorize MOLTEN to: (i) contact the recipient of the Content to request delivery specifications; and (ii) deliver the Content or make the Content available to the recipient, according to the specifications provided by the recipient. Content delivery is subject to usage fees. MOLTEN may offer security measures, such as encryption or watermarking for content delivery, but it is your sole responsibility to determine whether such security measures are sufficient for your Content delivery, based on the sensitivity of your Content. MOLTEN may refuse a request for Content delivery if MOLTEN reasonably determines that the request is commercially unreasonable or poses a security risk to MOLTEN, Customer, or a third-party. Customer acknowledges that usage fees vary based on numerous factors, including without limitation, method of delivery, bandwidth available, and network congestion. Additionally, Customer is responsible for usage fees for Content deliveries that are rejected.

MOLTEN offers a finite set of Supported Destinations, subject to modification at our sole discretion, including, but not limited to, the addition, removal, or alteration. Customer requests for additions or alterations to destinations shall be classified as engineering development, subject to separate scoping and pricing. If Customer requests a new destination specific to a Business Associate, the Customer must provide MOLTEN with an authorized Business Associate point of contact to facilitate accurate integrations, development and testing of Content delivery. All integrations to destinations developed by MOLTEN, irrespective of origin or purpose, constitute MOLTEN's exclusive intellectual property and may be incorporated into the MOLTEN product suite at our discretion.

2.5 Calculation of Royalties.

MOLTEN Platform offers a software module to simplify operations related to calculation and reporting of royalties. If this module is included in your subscription plan, you may utilize it to ingest reports of revenue earnings, calculate royalties for those earnings, and export royalty statements. You may ingest such earning reports from the various sources that are supported (“Supported Sources”) using the MOLTEN Platform. It is your responsibility to accurately identify the data to ingest, the accuracy of data ingested and generated, and the recipient for sharing the reports.

MOLTEN offers a finite set of Supported Sources, subject to modification at our sole discretion, including, but not limited to, the addition, removal, or alteration. Customer requests for additions or alterations to such sources shall be classified as engineering development, subject to separate scoping and pricing. If Customer requests a new source specific to a Business Associate, the Customer must provide MOLTEN with an authorized Business Associate point of contact to facilitate accurate integrations, development and testing of Content delivery. All integrations to sources developed by MOLTEN, irrespective of origin or purpose, constitute MOLTEN’s exclusive intellectual property and may be incorporated into the MOLTEN product suite at our discretion.

3. Fees And Payment.

In addition to the fee and payment terms on your Order Form, the following fee and payment terms apply:

• late payments shall be subject to interest that accrues at the lower of 1.5% per month or the highest rate permitted by law, plus costs of collection;  
• fees must be paid in United States dollars;
• fees do not include, and you are solely responsible for, any and all direct or indirect local, state, federal or foreign sales, use, GST, value-added withholding, or similar taxes or levies, other than taxes based on the income of MOLTEN;
• fees do not include, and you are solely responsible for, any and all currency conversion, funds transfer and transaction fees reasonably necessary for MOLTEN to receive payment in US Dollars;
• fees may only be paid using automated payment methods supported by MOLTEN, which include credit or debit card, PayPal, and ACH direct debit; other methods such as wire transfers, checks, and ACH credit are not supported; MOLTEN reserves the right, at its sole discretion, to modify the supported methods of automated payment;
• if your subscription is renewed, we may adjust the fees for our Services by providing written notice to you at least 90 days prior to the expiration of the then current subscription term, provided that if MOLTEN does not provide such notice, the pricing for any renewal term shall increase by 10%, as compared to the then preceding subscription term;
• we may adjust fees for our Services to reflect upgrades or downgrades in your subscription that you have agreed to, including adding modules or features; and
• if there is a change in billing tier, it will be implemented at the start of the month following such change; the corresponding prorated refund credit in case of tiering-down, or additional charge in case of tiering-up will be invoiced and processed at the start of the month following the date of such change.

4. Confidentiality.

From time to time during the term of this Agreement, 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, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) 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 or contractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are bound by confidentiality provisions at least as restrictive as those contained in this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) 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 (ii) to establish a party’s rights under this Agreement, including to make required court filings.

Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date (as defined below) and will expire five 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 this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

5. Warranties.

Each party represents and warrants that it has the power and authority to execute the Agreement and to deliver and perform its obligations under the Agreement.

We represent and warrant that the MOLTEN Platform will operate in all material respects according to the product description at /company and that any professional services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards. Your sole and exclusive remedy, and our sole liability, for any breach of this warranty shall be for us to correct or re-perform the relevant Services at our expense.

You represent and warrant that neither you, nor your Authorized Users are prohibited from receiving our services under the laws of the United States or other applicable jurisdiction, by reason of any export control laws or regulations, or any other reason.

5.1 Disclaimer.

Except for the limited warranty in this Section 5, MOLTEN does not make any warranties, including implied warranties such as the implied warranty of merchantability, fitness for a particular purpose, and non-infringement.

6. Indemnification and Liability.

6.1 Indemnification.

We will indemnify you and your directors, officers, employees, and contractors (“Associates”) for any third-party legal proceedings (including actions by government authorities) arising out of or relating to the alleged infringement or misappropriation of a copyright, trade secret, trademark or United States patent caused by you or your Authorized Users’ authorized use of our services. If any claim which we are obligated to defend has occurred, or in our determination is likely to occur, we may, in our sole discretion and as your sole and exclusive remedy for any claim of intellectual property infringement, either:

• obtain for you the right to use the allegedly infringing service;
• substitute a non-infringing replacement for the service; or  
• terminate the Agreement and refund to you a pro-rated amount representing the fees for any services that you have paid for and have not received.

You will indemnify, hold harmless, and, at our option, defend us and our Associates from and against any third party claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or privacy rights and any third-party claims based on your or your Authorized Users’ (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by us or authorized by us in writing; or (iv) modifications to the Services not made by us.

The indemnity in this Section 6.1 covers any liability or expense arising from claims, losses, damages, judgments, fines, litigation costs, and reasonable legal fees.

6.2 Limitation of Liability.

IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS OR REPRESENTATIVES BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED HERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY: (A)  ERROR OR INTERRUPTION OF USE OR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B)  INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; OR (C)  AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID AND PAYABLE BY CUSTOMER TO MOLTEN FOR THE SERVICES UNDER THIS AGREEMENT, EXCLUDING USAGE BASED FEES SUCH AS STORAGE FEES OR CONTENT DELIVERY FEES,  IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY (“MAXIMUM AGGREGATE LIABILITY”), IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT: (I) WITH RESPECT TO LIABILITY, LOSS, OR CLAIM ARISING OUT OF OR IN CONNECTION WITH A BREACH OF CONFIDENTIALITY, THE MAXIMUM AGGREGATE LIABILITY SHALL BE THE EXCLUSION LIMIT (AS DEFINED BELOW); (II) OUR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT WILL NOT EXCEED THE EXCLUSION LIMIT; AND (III) NO LIMITATION OR WAIVER OF LIABILITY, REMEDY OR EXCULPATION OF EITHER PARTY WILL APPLY TO: (X) ANY LIABILITY, LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH ANY BODILY INJURY OR DEATH, (Y) ACTS OR OMISSIONS THAT CONSTITUTE WILLFUL MISCONDUCT, GROSS NEGLIGENCE OR FRAUD, OR (Z) YOUR OBLIGATIONS TO PAY FEES OR YOUR INDEMNIFICATION OBLIGATIONS. “EXCLUSION LIMIT” MEANS THE LESSER OF: (A) FEES PAID BY YOU TO MOLTEN FOR THE SERVICES UNDER THIS AGREEMENT, EXCLUDING USAGE BASED FEES SUCH AS STORAGE FEES OR CONTENT DELIVERY FEES, IN THE 36 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY; AND (B) $100,000.00

6.3 Indemnification Procedure and Limitations.

The indemnifying party’s indemnification obligation is subject to the indemnifying party receiving:

• prompt written notice from the indemnified party of such claim (but in any event, notice in sufficient time for the indemnifying party to respond without prejudice);  
• the exclusive right to control and direct the investigation, defense, or settlement of such claim; and
• all reasonably necessary cooperation of the indemnified party at the indemnifying party’s expense.

A party’s duty to indemnify under the Agreement shall be limited to the extent that the third-party legal proceeding arises out of the gross negligence or intentional misconduct of the party seeking indemnity or its Associates.

7. Term And Termination.

7.1 Term.

The Order Term includes the initial subscription term and any renewal subscription terms. When the initial subscription term expires, the Order Form will automatically renew for additional renewal subscription terms, unless either party provides written notice to the other party of non-renewal at least 60 days prior to the then-current subscription term.

These Customer Terms begin on your initial Order Form’s effective date (the “Effective Date”) and remain in effect, until terminated according to these Customer Terms. Termination of these Customer Terms will automatically terminate all Order Forms.

7.2 Termination.

Either Party may terminate these Customer Terms or an Order Form as follows:  

• on 30 days written notice if the other Party breaches any material provision of these Customer Terms and does not cure the breach before the end of the 30 day cure period;
• effective immediately and without notice if the other Party ceases to do business or otherwise terminates its operations, except as a result of a permitted assignment hereunder; or  
• if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditor’s arrangement or comparable proceedings, if the proceeding is instituted against that Party (and not dismissed with sixty (60) days thereafter).  

Additionally, we may immediately suspend your access to the MOLTEN Platform if your account is 20 days or more overdue.

7.3 Effect of Termination.

Upon termination or expiration of these Customer Terms or an Order Form:  

• your access to, and use of, the applicable services shall immediately cease;  
• any of your accrued payment obligations (including those payment obligations arising in the then-current subscription term) will become due 15 days following the termination or expiration; and  
• you will not be entitled to any refund of any prepaid amounts, except in the event of your termination of this Agreement as provided in accordance with Section 7.2, in which case we will refund to you a pro rata amount of any prepaid fees for Services not yet rendered.

7.4 Return and Deletion of Customer Data.

You will have access to your Customer Data through the MOLTEN Platform during the applicable Order Term and are solely responsible for downloading your Customer Data prior to expiration or termination of the applicable Order Term, which downloading is subject to applicable Content delivery fees. We may destroy your Customer Data: (i) if you fail to make written request that we return your Customer Data within 5 days of expiration or termination of the applicable Order Form (a “Data Return Request”); or (ii) 15 days or more after expiration or termination of the applicable Order Form.

If you make a Data Return Request, we will: (i) make your Customer Data available to you for download via a MOLTEN supported cloud server of our choosing, for a period of no greater than 15 days; or (ii) initiate delivery of your Customer Data to a cloud server controlled by a MOLTEN supported vendor. Content storage and delivery fees shall continue to apply from the date of termination of the applicable Order to the date that the return of the Customer Data is completed.

8. Updates to Customer Terms.

We may update these Customer Terms:  

• to reflect changes in our services or how we do business, such as the addition of services or changes in pricing;
• for legal or security reasons; or  
• to prevent harm to you, us, or third-parties.

Your continued use of the MOLTEN Platform after a revised version of these Customer Terms has been posted on the MOLTEN Platform constitutes your binding acceptance of the revised Customer Terms.

9. Miscellaneous.

9.1 Publicity.

During the term of these Customer Terms, MOLTEN may publicly identify Customer as a user of the MOLTEN Platform, including using Customer’s name, logo, and/or trademark(s), in accordance with Customer’s branding and style guidelines.

9.2 Marketing Consents.

Customer hereby grants MOLTEN consent to contact Customer and Customer’s Authorized Users for the purpose of providing marketing and other materials regarding the MOLTEN Platform, including without limitation information regarding updates and features, newsletters, and invitations to trainings or webinars.

9.3 Case Study

Upon successful onboarding, Customer consents to collaborate on a case study with MOLTEN. This collaboration provides an opportunity for Customer to showcase its industry leadership, innovative use-cases, and positive outcomes achieved through the MOLTEN Platform, to the extent it is comfortable sharing. The Customer and MOLTEN may both utilize the resulting case study in their marketing endeavors. Prior to public dissemination, the case study will be provided to the Customer for approval.

9.4 Assignment.

Except for any subcontractors under the Agreement, neither party may assign the Agreement or any of its rights, by operation of law or otherwise, or delegate any of its duties hereunder, in whole or in part, without the other party’s prior written consent; provided, however, either party may assign the Agreement, without the consent of the other party, in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under the Agreement in breach of the previous sentence shall be void and of no effect.

9.5 Third Party Offerings.

Certain third-party providers offer products and services that may be compatible with our services and may be made available to you through our services and website. We do not warrant and are not liable for any offering from a third-party, including but not limited to third-party offerings that you may receive by making payments to us, third party offerings listed on an Order Form, and third-party offerings that we may designate as “certified,” “validated” or otherwise. Third-party offerings are provided pursuant to the terms of the applicable third-party agreement between you and the third-party provider.

9.6 Independent Contractors.

The parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

9.7 Force Majeure.

Neither party shall be liable to the other party for any delay or failure to perform any obligation under the Agreement (except for your obligation to pay fees) if the delay or failure to perform is due to unforeseen events which are beyond the reasonable control of such party (“Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, pandemic, epidemic, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. Any Party claiming a Force Majeure Event must provide prompt notice thereof to the other Party and make commercially reasonable efforts to overcome the effect of the Force Majeure Event. If the Force Majeure Event prevents the Party from substantially performing its obligations for a period of 10 days or more, either Party may terminate the Agreement on 5 days written notice.

9.8 Severability.

If any provision of the Agreement is found by a court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the Agreement will otherwise remain in effect, provided that the fundamental terms of the Agreement remain legal and enforceable.

9.9 Governing Law; Arbitration.

The Agreement will be governed by the laws of the United States and the State of Massachusetts, excluding its conflict of laws rules. The United Nations Convention on the International Sale of Goods and the Uniform Computer Transactions Act are specifically excluded from application to the Agreement.

Disputes will be resolved by binding arbitration, rather than in court. The Federal Arbitration Act and federal arbitration law apply to this Agreement. The arbitration will be conducted by the American Arbitration Association (AAA) under its commercial rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of filing, administration and arbitrator fees will be governed by the AAA commercial fee schedule. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. We and you further agree that the underlying award in arbitration may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules. If for any reason a claim proceeds in court rather than in arbitration we and you waive any right to a jury trial. Notwithstanding the foregoing we and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

9.10 Notice.

Any notice or communication required or permitted under the Agreement must be by email with confirmation of transmission, to the Party at their email address identified on the Order Form, or another email address given in writing by that Party to the other to the other Party. Notices are deemed received by the addressee immediately upon receipt.

9.11 Entire Agreement.

These Customer Terms, together with each Order Form, are the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements and communications relating to the subject matter of the Agreement. Purchase orders (and similar documents) that you may issue are for administrative purposes only (e.g., setting forth products and services ordered and associated fees) and any additional or different terms or conditions contained in your purchase order shall not apply (even if the purchase order is accepted, or performed on by MOLTEN). In the event of a conflict between any Order Form and these Customer Terms, the Order Form will control.