Posted January 25, 2024

These “Furniture.com Terms of Service” are between Furniture.com America LLC (“FdC”) and the “Participant” listed in the “Order Form.” FdC and Participant are individually a “Party” and collectively the “Parties.” These Furniture.com Terms of Service and any Order Forms between the Parties comprise the “Agreement” between them. This Agreement is made as of the “Effective Date” listed on the first Order Form executed by the Parties.

FdC operates the platform “furniture.com” (including the website located at and any mobile applications) (“FdC Site”) through which FdC, among other things, promotes, aggregates, and advertises various home furnishing products and services of participants similar to Participant, including but not limited to the products of FdC Affiliates[1] (“FdC Products”).

Participant operates the “Participant Site” through which Participant, among other things, promotes, advertises, and offers for sale home furnishing products and services (“Participant Products”). This Agreement contemplates connections between the FdC Site and the Participant Site(s), such as the placement of hypertext reference links on the FdC Site connecting to the Participant Site, as well as connections between FdC and Participant’s System (defined below). Unless specifically referred to otherwise, the FdC Site and the Participant Site are individually a “Site” and collectively the “Sites.”

In consideration of the covenants and understandings in this Agreement and for other consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows.

[1] An “Affiliate” is any person or entity that, directly, indirectly, or through one or more intermediaries, controls, is controlled by, or is under common control with another person or entity. “Control” means the power to direct the management and policies of such person or entity, directly or indirectly, whether through ownership of voting securities, by contract, or otherwise.

1. License grant.

Participant grants and will provide to FdC during the Term and in the Territory a nonexclusive, royalty-free, fully paid-up “License” for the following “Participant Licensed Items”:

1. hypertext reference links to be provided by Participant for the purpose of permitting the FdC Site to link to specified display and engagement web pages on the Participant Site (“Participant Links”).
2. Information about Participant Products, Participant’s brand, Participant’s Site, and Participant’s retail store locations (if applicable), including but not limited to intellectual property, copyrights, trademarks, service marks, trade dress, copy, text, photographs, videos, brands, logos, slogans, trade names, product attributes (including but not limited to names, descriptions, types, prices, discounts, colors, material, dimensions, sizes, shapes, finishes, stock and availability), internet domain names, store locations, hours, telephone numbers and other contact information (“Participant Information”).
3. Reviews of the Participant, its brand, and Participant Products originating from the Participant Site or from a third-party review platform (“Review Data”).
4. If available, access to scheduling APIs that allow Site visitors to create appointments at Participant’s physical locations (“Appointments Data”).
5. Access to allow FdC to embed (through technologies such as iframe) Participant Information (“Embedded Content”).
6. Information (including information about users of Participant’s Site) generated by pixels, cookies, and other tracking technologies (“Pixels”) to the extent the Parties agree to integrate such technologies on Participant’s Site or Participant’s System (“Pixel Information”).

The License permits FdC to access, obtain, use, store, reproduce, modify (e.g., to resize, crop, or touch-up photos but without major substantive alteration), prepare derivative works of, transmit, disclose, publish, and display the Participant Licensed Items only for the following purposes: to (i) operate, optimize, and improve the FdC Site; (ii) collect, analyze, and generate data and reports regarding the performance of and activity on the FdC Site; and (iii) advertise, market, and promote the FdC Site, FdC Products, Participant Products, or Participant Licensed Items in any and all forms of media (whether now known or later created), including but not limited to television (including broadcast, cable, satellite, streaming, and over-the-top), radio, internet, websites, and social media.

The Parties understand that FdC intends to create marketing, advertising, and promotional materials incorporating Participant Licensed Items (e.g., television ads or social media posts featuring photographs of Participant Products), and that it may be impractical to remove Participant Licensed Items from such materials or stop such materials from continued circulation after the Term. Therefore, the License shall be perpetual only as to item (iii) above, and only with respect to Participant Licensed Items contained in such materials created during the Term.

2. FdC Fees, payment, and taxes.

1. Participant will pay to FdC the “FdC Fees” described in the then-current Order Form. FdC will invoice Participant on a monthly basis, and Participant will pay amounts owed within thirty (30) days after invoicing. Any payment not timely made will be subject to the maximum rate of legal interest on the overdue amount, and Participant shall be responsible for the costs of collection of any late amounts, including reasonable attorneys’ fees. Each Party shall be solely responsible for the payment of all applicable federal and state taxes, including any sales, use, excise or transfer taxes, imposed on it under applicable law, associated with payments under this Agreement. Unless specifically advised otherwise by FdC, all payments due FdC shall be made according to the payment instructions in the then-current Order Form.
2. FdC may modify the FdC Fees at any time by providing Participant a revised Order Form, which shall take effect no sooner than thirty (30) days after it is provided. Participant may reject a revised Order Form on written notice to FdC within thirty (30) days. If Participant rejects a revised Order Form, FdC may, at its discretion, terminate the existing Order Form or continue under the terms of the existing Order Form.

3. Term and Territory.

This Agreement’s “Term” begins on the Effective Date and continues until all Order Forms terminate or expire. The “Territory” is the United States and its territories and possessions.

4. FdC Editorial Control and objectionable material.

Placement, locations, and manners and forms of use of Participant Licensed Items on the FdC Site shall be at FdC’s sole discretion (“FdC Editorial Control”). In addition, FdC, in its sole discretion, may withdraw or remove any Participant Licensed Item from the FdC Site if FdC determines, in its sole discretion, that the use of such Participant Licensed Item does, would or may tend to:

1. violate or infringe any intellectual property or proprietary or contractual or other right of any third party;
2. violate or be inconsistent with any Laws (defined below), court order, government regulation or other ruling of any governmental agency or entity;
3. subject FdC or its Affiliates to any liability;
4. jeopardize FdC’s ability to protect its rights or its property in the manner deemed appropriate by FdC;
5. include or otherwise make available any content which FdC deems to be pornographic, obscene, or otherwise inconsistent with FdC’s standards and values;
6. be otherwise inappropriate for or offensive to FdC’s customer or user base; or
7. otherwise expose FdC, its Affiliates or any of their customers or users to any civil, criminal or equitable damages or risk of any type.

5. Participant Protocols and Participant System.

1. Participant Protocols. Participant will give FdC access to the Participant Licensed Items by electronic means in accordance with the technical requirements described in the Order Form or the integration specifications or as otherwise provided to Participant (“Participant Protocols”).
2. Participant System. Without in any way limiting the Participant Protocols, Participant warrants that its networks, operating system, databases, data, information, and software (including Participant Licensed Items) that interface or interact with FdC or the FdC Site (“Participant System”) are and will be configured to industry standards and, as applicable, to securely operate and be transmitted to FdC and to function on the FdC Site. Participant will promptly correct any security deficiency. In no event will the Participant System contain any virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems or software; or time bomb, drop-dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any person, or otherwise (“Malicious Code”).

6. FdC Intellectual Property.

This Agreement does not confer on Participant any rights of use, or any other interest, in the FdC Site or FdC IP. In no event may Participant display on the Participant Site or otherwise use any FdC IP without the express prior written approval of FdC. “FdC IP” means all rights of FdC of the following types, which may exist or be created under the Laws of any jurisdiction in the world, in each case whether registered or unregistered:

1. works of authorship including exclusive copyrights, renewals of and moral rights in or relating thereto;
2. trademarks, service marks, trade dress, copy, text, photographs, videos, brands, logos, slogans, trade names, products names, internet domain names, URLs, website addresses, social media accounts and all registrations and applications for registration relating thereto;
3. trade secrets and confidential and/or proprietary information and knowhow;
4. patents, patent disclosures, inventions, utility models and industrial designs, and applications and registrations related thereto;
5. software and computer programs including programming tools, scripts, and routines as well as all related designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions; and
6. other proprietary rights in intellectual property.

7. Reservation of rights and competitive products.

The licenses granted to FdC under Section 1 are nonexclusive, in that they are subject to Participant’s reserved right to use the Participant Licensed Items in Participant’s own business, including in connection with the promotion and sale of Participant Products. Each Party acknowledges that the other Party’s products or services may be similar to or competitive with the products or services of the other Party or its Affiliates, and that nothing herein limits either Party’s use of its own Site in furtherance of the promotion of its intellectual property or sale of the products or services of such Party or its Affiliates.

8. Intellectual property restrictions.

Except as allowed under Section 1 or elsewhere in this Agreement, neither Party shall in any way suggest or imply through use of another Party’s intellectual property or otherwise that its Site or its online services are directly affiliated with, endorsed or sponsored by, or in association with the other Party or the other Party’s Site. Each Party acknowledges and agrees that the other Party owns all right, title and interest in and to its intellectual property and the content on its Site. Neither Party shall at any time contest or challenge the validity, enforceability or ownership of the other Party’s intellectual property or the content on the other Party’s Site or itself commit or authorize others to commit any act or admission which would in any material way impair the rights of the other Party with respect to the other Party’s intellectual property or Site.

9. Representations.

1. By Participant. Participant represents that:
1. it is and shall remain duly organized, validly existing, in good standing and qualified to do business under applicable Laws where Participant is formed and in any jurisdiction in which Participant operates;
2. it shall comply with all applicable laws, statutes, ordinances, rules and regulations applicable to this Agreement, Participant Information, and the Participant Site (including but not limited to any applicable consumer privacy and protection laws such as the California Consumer Privacy Act, the California Privacy Rights Act, and Proposition 65, as applicable) (“Laws”);
3. it shall (1) publish a privacy policy or other notice on Participant’s Site that, in each case as applicable, clearly and accurately discloses Participant’s use of Pixels, describes how Pixels may collect, use, and share users’ information with third parties (like FdC), and offers a mechanism for users to opt out of or consent to such collection, use, and sharing of their information; (2) keep records of users’ consent for as long as Participant uses Pixels; (3) not collect or share with FdC any personally identifiable information beyond what is agreed by the Parties; (4) not use Pixels on any Participant Site that collects or solicits information from, or is directed to, children under 16 years of age (or the age defined by applicable Laws); and (5) not use Pixels to reach audiences based on sensitive information such as financial status or health/medical information (or as defined by applicable Laws);
4. it has all requisite corporate power and authority to own and operate its assets, carry on its business, and sign this Agreement;
5. the use of the Participant Licensed Items will not infringe any third-party rights (including, without limitation, any intellectual property rights or other contractual or proprietary rights);
6. it has (1) the right to use any third-party materials contained in the Participant Licensed Items and the Participant Site, (2) the right to sublicense any third-party materials contained in the Participant Licensed Items and the Participant Site in accordance with the terms of this Agreement, (3) obtained all licenses, rights, clearances and permissions as necessary for FdC to exercise its rights in and to the use of the Participant Licensed Items and the Participant Site as set forth in this Agreement, free and clear of liens, claims and encumbrances (whether existing, pending, or threatened), (4) verified that all Participant Licensed Items and the Participant Site are accurate and are not in any respect false or misleading, and (5) verified that all Participant Licensed Items and the Participant Site shall be free and clear from material defects and deficiencies in design or workmanship (including but not limited to Malicious Code).
2. By FdC. FdC represents that:
1. it is and shall remain duly organized, validly existing, in good standing and qualified to do business under applicable Laws where FdC is formed and in any jurisdiction in which FdC operates;
2. it shall comply with all applicable Laws in connection with this Agreement;
3. it has all requisite corporate power and authority to own and operate its assets, carry on its business, and sign this Agreement;
4. the FdC Site will perform materially in accordance with the terms of this Agreement; and
5. to the best of FdC’s knowledge, the FdC Site does not contain, and FdC will not knowingly introduce, any Malicious Code into the FdC Site.

10. Audit rights.

FdC shall maintain and retain books and records documenting the activities on the FdC Site that generate FdC Fees. All such records shall be retained by FdC for a period of at least three (3) years. At Participant’s request, FdC shall make such books and records available during normal business hours for inspection or audit by Participant, provided that Participant shall: (a) give at least thirty (30) days’ written notice of any audit, (b) undertake an audit no more than once per calendar year, and (c) conduct such audit in a manner designed to minimize disruption of FdC’s normal business operations. Participant will pay the cost of such audits unless an audit reveals an overbilling of five percent (5%) or more, in which case FdC shall reimburse Participant for the reasonable cost of the audit.

11. Termination.

The Parties may exercise the following termination rights:

1. either Party may terminate any Order Form by providing the other Party with written notice of termination at least ninety (90) days before the beginning of any Renewal Term;
2. 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 is incapable of cure, or, being capable of cure, remains uncured for thirty (30) days after the nonbreaching Party provides written notice of the breach (except in the case of nonpayment, in which case the cure period shall be seven (7) days).

12. DISCLAIMER OF WARRANTY.

The FdC Site, FdC’s facilitation of Participant’s linkage of the Participant Site to the FdC Site, and FdC’s enabling of SITE Activities are provided “as-is.” FdC makes no warranties under this Agreement, and FdC expressly disclaims all warranties, express or implied, including but not limited to warranties of merchantability, noninfringement, or fitness for a particular purpose. Without limiting the foregoing, FdC further disclaims all representations and warranties, express or implied, that the FdC Site, FdC’s facilitation of Participant’s linkage of the Participant Site to the FdC Site, and FdC’s enabling of SITE Activities will satisfy ANY OR ALL of Participant’s requirements or will be uninterrupted, error-free, or free from harmful components.

13. LIMITATION OF LIABILITY.

• FdC and its Affiliates will have no liability ARISING OUT OF OR RELATED to the FdC Site, FdC’s facilitation of Participant’s linkage of the Participant Site to the FdC Site, FdC’s enabling of SITE Activities, or FdC’s obligations under this Agreement, or otherwise for any indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting OR RELATING in any way from FdC’s facilitation of Participant’s linkage of the Participant Site to the FdC Site, or FdC’s enabling of SITE Activities.
• FdC’s and its Affiliates’ liability TO PARTICIPANT OR ANY THIRD PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE FDC SITE for any reason will be limited to the FDC Fees paid to FdC by Participant during the ONE (1) YEAR period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts.
• The relationship between a Participant and users of the Participant Site is strictly between Participant and such users, and neither FdC nor its Affiliates are obligated to intervene in any dispute arising between the Participant and users of the Participant Site. Under no circumstances will FdC or its Affiliates be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that arise out of or relate to the Participant’s relationship with any users of the Participant Site.
• These limitations will apply even if FdC or its Affiliates have been advised of the possibility of such damages. The foregoing limitations will apply to the fullest extent permitted by applicable law.

14. Indemnification.

1. Obligations. Each party (“Indemnifying Party”) agrees to indemnify, defend and hold harmless the other party and its predecessors, successors, assigns, and Affiliates, and each of their respective directors, officers, shareholders, members, managers, partners, trustees, employees, subcontractors and agents (“Indemnified Parties”), with respect to any third-party claim, demand, suit, complaint, cause of action, debt, cost, fine, fee, penalty, damage, or liability, including reasonable attorneys’ fees (“Claims”), to the extent that such Claim alleges, is based upon, relates to, or arises out of:
1. The Indemnifying Party’s breach of any applicable Law, representation, warranty, obligation or covenant under this Agreement;
2. The Indemnifying Party’s gross negligence, fraud, or willful misconduct;
3. Where Participant is the Indemnifying Party—
1. any warranty, condition, representation, indemnity, obligation, or guarantee relating to FdC or its Affiliates granted by Participant to any users of the Participant Site or other third party;
2. Participant’s use of the FdC Site or linkage of the Participant Site to the FdC Site;
3. that Participant Products, the Participant Site, or Participant Licensed Items are inaccurate, false, unfair, or misleading, or have injured, or infringed intellectual property or other rights;
4. the performance, nonperformance or improper performance of the Participant Products or services;
5. Participant’s relationship or interaction with any user of the Participant Site; and
4. Where FdC is the Indemnifying Party, that the FdC Site has infringed the intellectual property rights of a third party.
2. Procedure. In claiming any indemnification under this Agreement, the Indemnified Party will promptly provide the Indemnifying Party with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the Indemnifying Party will control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Indemnifying Party will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.

15. No Exclusivity.

Nothing in this Agreement creates any exclusive arrangement between the Parties. This Agreement will not restrict either Party from entering into similar arrangements with others, provided such Party does not breach its obligations under this Agreement by doing so.

16. Feedback.

If Participant provides any feedback (including identifying potential errors and improvements) to FdC concerning the FdC Site, the Participant Site or the linkage of the Participant Site to the FdC Site (“Feedback”), Participant hereby assigns to FdC all right, title, and interest in and to the Feedback, and FdC is free to use, reproduce, disclose, and otherwise exploit the Feedback for any purpose and without attribution, payment or restriction. FdC will treat any Feedback as nonconfidential and nonproprietary. Participant will not submit any Feedback that it considers confidential or proprietary.

17. Other Features.

From time to time, FdC may, in its sole discretion, invite Participant to use potential new services or features in connection with the FdC Site (“Other Features”). Other Features may be subject to additional terms and conditions, which FdC will provide to Participant before Participant’s use of such Other Features.

18. Confidential Information

1. In connection with this Agreement, each Party (the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to any Order Forms or to the Disclosing Party’s technology, trade secrets, know-how, business operations, finances, vendors, plans, and strategies, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.” Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s non-compliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
2. Notwithstanding anything to the contrary, FdC may obtain information about Participant Licensed Items and users’ behavior on the FdC Site and use such information in an aggregate and de-identified manner for any lawful purpose, including to compile statistical and performance information related to the FdC Site (“Aggregated Statistics”). Aggregated Statistics are not Confidential Information, and all right, title and interest in Aggregated Statistics belong to and are retained solely by FdC.
3. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement and shall safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. The Receiving Party shall be responsible for any breach of or non-compliance with the obligations set forth in this section. If the Receiving Party is compelled by applicable Laws to disclose any Confidential Information, then, to the extent permitted by applicable Laws, the Receiving Party shall: promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy and provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure.

19. Miscellaneous

1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this section). All Notices must be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail, or email. Except as otherwise provided in this Agreement, a Notice is effective only upon receipt by the receiving Party. In the case of FdC, a copy of any Notice shall also be sent to .
3. Amendment, Modification, and Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
4. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5. Governing Law and Venue. This Agreement, for all purposes, is deemed to have been made, executed and delivered in the State of Georgia, DeKalb County, and shall be governed by and construed under the laws of the State of Georgia, without reference to conflicts of laws principles. Each of the Parties submits to the exclusive jurisdiction of any mediator, arbitrator or state or federal court sitting in the State of Georgia in any action or proceeding arising out of or relating to this Agreement, as applicable pursuant to the dispute resolution procedures set forth below. Subject to such dispute resolution procedures, each Party agrees that all claims in respect of the action or proceeding may be heard and determined in any such mediation, arbitration, or court only in DeKalb County, Georgia, and agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other venue. Each of the Parties waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto.
6. Dispute Resolution. Claims, disputes and/or other matters in question arising out of or relating to this Agreement shall be referred initially to the other Party in an attempt to reach an amicable solution. If the Parties are unable to reach such amicable solution within thirty (30) days after submission of the matter, such claim, dispute, or other matter shall be subject to mediation as a condition precedent to binding dispute resolution. The parties shall endeavor to resolve their disputes by mediation which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association and held in Atlanta, Georgia. A request for mediation shall be made in writing, delivered to the other Party to this Agreement, and filed with the person or entity administering the mediation. The request may be made concurrently with a binding dispute resolution but, in such event, mediation shall proceed in advance of a binding dispute resolution proceedings, which shall be stayed pending mediation for a period of sixty (60) days from the date of filing, unless stayed for a longer period by agreement of the Parties or court order. If an arbitration is stayed pursuant to this section, the Parties may nonetheless proceed to the selection of the arbitrator(s) and agree upon a schedule for later proceedings. Any claim subject to, but not resolved by, mediation shall be subject to arbitration which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association by a single arbitrator and held in Atlanta, Georgia. Demand for arbitration shall be made in writing, delivered to the other Party to the Agreement, and filed with the person or entity administering the arbitration. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable Laws in any court having jurisdiction thereof. The foregoing agreement to arbitrate shall be specifically enforceable under applicable Laws in any court having jurisdiction thereof. Notwithstanding anything to the contrary in this subsection, claims for breach of Section 4 or 6 may be brought outside arbitration in a court of competent jurisdiction.
7. Waiver of Jury Trial. The Parties hereby agree to waive their respective rights to a jury trial of any claim or cause of action related to or arising out of this Agreement. The scope of the waiver is intended to be all encompassing of any and all disputes that may be filed in any court and that relate to the subject matter herein, including without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims. The Parties each acknowledge that the waiver is a material inducement for each Party to enter into a business relationship, that each Party has already relied on the waiver in entering into this Agreement and that each will continue to rely on the waiver in their related future dealings. Each Party further warrants and represents that each has had the opportunity to have their legal counsel review the waiver. This waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver shall apply to any subsequent amendments, renewals, supplements or modifications to this Agreement.
8. Assignment. Neither Party may assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld, conditioned, or delayed; provided, however, that either Party may assign its rights or delegate its obligations, in whole or in part, without such consent and upon fifteen (15) days prior written notice to the other Party, to (i) one or more of its affiliates, or (ii) an entity that acquires all or substantially all of the business or assets of such Party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any purported assignment, transfer, or delegation in violation of this section will be null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
9. Insurance. While this Agreement is in effect, Participant shall maintain, at its own cost and expense, insurance as set forth below. All coverage shall be underwritten by financially responsible insurance companies rated A-VII or better by A.M. Best Company. Additionally, pursuant to this Agreement Participant agrees that FdC will be and is added as an additional insured on the cyber, commercial general liability, automobile, and umbrella insurance policies. Upon FdC request, Participant will provide FdC with a certificate(s) of insurance evidencing the following coverages:
1. Commercial general liability insurance in an amount of at least one million dollars ($1,000,000) per occurrence two million dollars ($2,000,000) in the aggregate;
2. Cyber liability insurance in an amount of at least five million dollars ($5,000,000) per claim and in the aggregate;
3. Errors and omissions, professional liability, or other line of insurance that includes advertising injury or other coverage that would respond to a third-party claim of intellectual property infringement, in an amount of at least one million dollars ($1,000,000), and
4. Umbrella liability insurance in an amount of at least five million dollars ($5,000,000) per occurrence and in the aggregate.
10. Equitable Relief. Participant acknowledges and agrees that a breach or threatened breach by Participant of any of its obligations under Sections 4 (FdC Editorial Control and objectionable material), 6 (FdC Intellectual Property), or 18 (Confidentiality) would cause FdC irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, FdC will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise, and may be asserted in a court of competent jurisdiction notwithstanding the agreement to arbitrate in subsection 19(f).
11. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. An executed signature page to this Agreement delivered by electronic means shall constitute effective delivery with the same force and effect as delivery of an original executed signature page.