OWNIT MASTER SERVICES AGREEMENT
Last Updated on August 02, 2023
This Master Services Agreement is entered into by and between Ownit Commerce Inc. ("Company") and the entity or person placing an order for or accessing any Services ("Customer" or "you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company. Please note that if you sign up for the Services using an email address from your employer or another entity, then (1) you will be deemed to represent such party, (2) your acceptance will bind your employer or that entity to these terms, and (3) the words “Customer”, “you” or “your” in this Agreement will refer to your employer or that entity.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Company pursuant to any Company ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which those products and services will be delivered.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer's initial access to the Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1.1 “Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
1.2 “Agreement” means this Master Services Agreement, including any exhibits and schedules attached hereto, and all Order Forms.
1.3 “Control” means 50% or greater voting power, or otherwise having the power to govern the financial and the operating policies or to appoint the management of an organization.
1.4 “Customer Data” means all information, data and other content, in any form or medium, that is submitted by or on behalf of Customer or Customer Users to Company or the Platform.
1.5 “Customer Users” means employees, agents, end-users, administrators, supervisors, and any other third parties authorized by Customer to access or use the Services.
1.6 “Documentation” means any user manuals or other documentation made available by Company with respect to the Services in electronic or paper format, as amended from time to time by Company.
1.7 “Fees” means any fees payable for the Services under an Order Form.
1.8 “Force Majeure Event” means an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation: acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Company's possession or reasonable control, and denial of service attacks.
1.9 “Implementation Services” means any implementation services that Company will provide to Customer under this Agreement as described in the applicable Order Form.
1.10 Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
1.11 "Company Materials" means all software, specifications, documentation and systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware and other technologies and inventions, including any Platform Content, technical or functional descriptions, requirements, plans or reports, that are provided or used by Company in connection with the Services or otherwise comprise or relate to the Services or the Platform. Company Materials do not include Customer Data.
1.12 “Platform” means Company’s proprietary platform of servers, software and technology used to provide the Services.
1.13 “Platform Content” means any product-related content, such as FAQs, instructions, usage tips and any related information, created, compiled or made available by Company through the Platform.
1.14 “Services” means the services that Company will provide to Customer under this Agreement as described in the applicable Order Form, which may include without limitation access to the Platform, Platform Content and associated Implementation Services.
2. SERVICES AND OWNERSHIP
2.1 Services. Subject to the terms of this Agreement, Company shall provide to Customer the Services. This Agreement does not obligate Customer to engage Company to perform any Services, or Company to perform any Services, until both parties have signed the Order Form(s) and then only for the Services specified in the Order Form. Company may engage subcontractors to perform the Services, provided that such subcontractors comply with the terms of this Agreement.
2.2 Customer Rights to the Services. Subject to the terms and conditions set forth in this Agreement, Company grants to Customer a limited, non-transferable/non-assignable (except as set forth in the Agreement), non-exclusive right to access and use the Services during the Term (as defined in Section 7.1) for its internal business purposes.
2.3 Services Modifications. Company is constantly innovating in order to provide the best possible experience for its customers. Customer acknowledges and agrees that the form and nature of the Services that Company provides may be modified from time to time without prior notice to Customer, provided that the overall functionality of the Services is not materially decreased.
2.4 Company Ownership Rights. All rights and title in and to the Platform, the Services, Company Materials and Documentation, including all copies of the foregoing in any form or medium, whether now known or existing or hereafter developed and all Intellectual Property Rights inherent therein (collectively “Company IP”), belong exclusively to Company and its licensors. No rights are granted to Customer other than as expressly set forth in this Agreement. Without limiting the foregoing, any developments, additions, custom features, modifications, configurations, enhancements, improvements or derivatives of Company IP developed pursuant to this Agreement shall be deemed to constitute part of Company IP of which Company is and shall be the sole owner. To the extent Customer happens to acquire any right, title, or interest in or to Company IP, Customer agrees to assign (and hereby assigns) any such right, title, and interest to Company.
2.5 Customer Ownership Rights. All rights and title in and to the Customer Data, including all Intellectual Property Rights inherent therein, belong exclusively to Customer. No rights are granted to Company other than as expressly set forth in this Agreement.
2.6 Consent to Use Customer Data. Customer grants Company a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Customer Data (a) to maintain, provide, and improve the Platform and provide the Services and Implementation Services under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) at Customer's direction or request, including processing initiated by Users of the Services in their use of the Services; (d) to enforce this Agreement and exercise its rights hereunder; and (e) as otherwise required by applicable law. No rights to the Customer Data are granted to Company hereunder other than as expressly set forth in this Agreement.
2.7 Customer Branding. Customer shall provide all necessary branding, logos, marketing assets, media files, and other content as may be requested by Company (“Customer Branding”) to provide the Services in accordance with this Agreement and the applicable Order Form. All Customer Branding shall be provided promptly and in formats requested by Company. Customer represents, warrants, and agrees that it possesses all licenses, rights, releases and other necessary and supporting documentation required to publish, display, explore, and monetize, directly or indirectly, all Customer Branding in accordance with the terms of this Agreement and as required by law. Customer understands, acknowledges, and agrees that any and all claims in connection to Customer Branding including but not limited to copyright, wrongful distribution, breach of license, defamation, wrongful doing, infringement are the sole responsibility of Customer. Customer hereby grants Company a non-exclusive, royalty-free, worldwide, fully paid-up license to use, copy, modify, distribute, publish, perform, create derivative works of, and display Customer Branding solely for the purpose of provide the Services to Customer.
2.8 Implementation Services. Customer acknowledges that Implementation Services will be performed by Company in cooperation with Customer personnel. Customer will furnish to Company such (a) descriptions, specifications, materials, data and other information, (b) cooperation, technical assistance, resources and support, and (c) access to Customer’s equipment, systems and networks, as reasonably necessary or appropriate to perform the Implementation Services.
3. RESTRICTIONS, RESPONSIBILITIES AND RIGHTS
3.1 Customer Restrictions. Customer shall not (and will not allow any third party to): (i) modify, copy, display, republish or create derivative works based on the Services or Company Materials; (ii) reverse engineer the Services; (iii) access the Services in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Services; (iv) use the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (v) use the Services to post or send infringing, obscene, threatening, libelous, or otherwise unlawful material; (vi) use the Services to access blocked services in violation of applicable laws; (vii) upload to the Services or use the Services to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (viii) use the Services to run automated queries to web sites; (ix) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (x) attempt to gain unauthorized access to the Services or its related systems or networks; (xi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services; or (xii) without the express prior written consent of Company, conduct any benchmarking or comparative study or analysis involving the Services for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of the Services to interoperate with Customer’s internal systems. In addition, Customer agrees that it shall: (i) use the Services solely for its internal business purposes; (ii) only permit access to the Services by Customer Users; and (iii) not access or use the Services from an embargoed nation, including without limitation, Cuba, Iran, North Korea, Syria, Sudan, Crimea Region of Ukraine, or any other country/region that becomes an embargoed nation.
3.2 Customer Responsibilities.
3.2.1 Customer agrees and understands that (i) it is responsible for all activity of Customer Users and for Customer Users’ compliance with this Agreement; (ii) it shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Services, and notify Company promptly of any such unauthorized access or use; and (c) comply with all applicable laws in using the Services; and (iii) prior to posting or providing Customer Data, it has and will have obtained all rights, licenses and consents necessary to authorize Company’s performance of the Services. The Services shall not include Customer’s access connection to the Internet or any equipment necessary for Customer to make such connection, which shall be Customer’s sole responsibility. Customer shall be responsible for supplying Company with any technical data and other information Company may reasonably request to allow Company to provide the Services to Customer.
3.2.2 Customer shall provide Company with complete and accurate account, billing and payment information and keep such information up to date during the Term. Customer shall also fulfill any additional responsibilities set forth in the applicable Order Form. Customer is responsible for maintaining the security and confidentiality of all passwords associated with Customer’s account. If Customer becomes aware of any unauthorized or illegal use of Customer’s account, Customer shall immediately notify Company.
3.2.3 Customer acknowledges and agrees that it must directly purchase any other equipment and ancillary services needed to be compatible with, connect to, or access Company’s Platform or otherwise necessary to permit Company to provide the Services, including, without limitation, modems, hardware, servers, software, operating systems, networks, telephone and other services.
3.3 Company Rights.
3.3.1 Company reserves the right to suspend Customer’s access to or download of the Services in the event Customer’s use of the Services represents an imminent threat to Company’s network, or if so directed by a court or competent authority. In such cases, Company will (i) suspend such the Services only to the extent reasonably necessary to prevent any harm to Company’s network (for example, blocking offending source IP addresses); (ii) use its best efforts to promptly contact Customer and give Customer the opportunity to promptly change the configuration of its server(s) accordingly and/or work with Customer to promptly resolve the issues causing the suspension of such the Services; and (iii) reinstate any suspended the Services immediately after any issue is abated. Without limiting the foregoing, Company reserves the right to manage bandwidth or route traffic across the Internet in a commercially optimal way, provided such actions do not compromise Company’s obligations regarding the Customer Data.
3.3.2 Company shall have the right to (i) take any action with respect to Customer Data, including deletion, that Company deems reasonably necessary or appropriate if Company concludes that any Customer Data violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public or could create liability for Company; (ii) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal use of the Services; and (iii) terminate or suspend Customer’s access to all or part of the Services for any violation of this Agreement. Notwithstanding the foregoing, Company does not undertake to review Customer Data before it is posted via the Services, and Company cannot ensure prompt removal of objectionable Customer Data after it has been posted. Accordingly, Company assumes no liability for any action or inaction regarding transmissions, communications or content provided by any Customer User or third party. Company disclaims all liability or responsibility for exercise or non-exercise of its rights under this Section 3.3.2.
3.3.3 Company shall have the right to (i) use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Services; (ii) utilize all other information provided by Customer (including Customer Data) to provide and improve the Services and comply with all legal or contractual requirements. Company may collect, use and store data concerning the usage and operation of the Platform to improve its service offerings provided that such data is anonymized and does not include information that identifies or provides a reasonable basis to identify a Customer or an individual. The foregoing shall in no way limit Company’s confidentiality obligations set forth in this Agreement.
4. FEES; PAYMENT TERMS
4.1 Fees. Customer shall pay Company the Fees set forth in an Order Form in accordance with this Section 4. Customer agrees and understands that if Customer does not pay Company the Fees due for the Services within the agreed time period, Company reserves the right to suspend Customer’s access and use of the Services until such Fees are paid as provided in Section 4.4.
4.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company's income.
4.3 Payment. Unless otherwise provided in an Order Form, Customer shall pay all Fees within thirty (30) days after the date of the invoice therefor. Customer shall make all payments hereunder in U.S. dollars by the payment method specified by Company. Customer shall make payments to the account specified in the applicable Order Form or such other account as Company may specify in writing from time to time.
4.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. If such failure continues for five (5) days following written notice thereof, Company may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer by reason of such suspension.
5.1 Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
5.2 AI Disclaimer. Customer acknowledges and agrees that some of the Services may include feature(s) and/or functionality powered by artificial intelligence (“AI Features”). THE AI FEATURES ARE AN EXPERIMENTAL TECHNOLOGY PROVIDED AT THE SOLE DISCRETION OF COMPANY ON AN AS-IS AND AS-AVAILABLE BASIS WITHOUT WARRANTIES OR OBLIGATIONS OF ANY KIND. WITHOUT LIMITING THE FOREGOING, FOR CLARITY, ANY WARRANTIES, INDEMNIFICATION OR OTHER OBLIGATIONS OF COMPANY WITH RESPECT TO THE SERVICES AS SET FORTH IN THE AGREEMENT DO NOT APPLY TO AI FEATURES. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY MAY REMOVE, MODIFY, DISCONTINUE OR DEPRECATE AI FEATURES IN ITS SOLE DISCRETION WITHOUT ANY FURTHER LIABILITY OR OBLIGATION. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY OUTPUT, RESULTS, PREDICTIONS OR OTHER CONTENT GENERATED BY OR USING AI FEATURES AND CUSTOMER’S RELIANCE ON OR USE OF SUCH OUTPUT.
5.3 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER.COMPANY EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. COMPANY ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT SERVICES WILL BE ERROR-FREE. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement.
6. CONFIDENTIAL INFORMATION
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in the Order Form hereunder), the Customer Data, the Services, Company IP, and each party’s respective business and marketing plans, technology and technical information, product designs, and business processes. The obligations in this Section shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Either party may disclose Confidential Information to its personnel and its auditors who are subject to the same confidentiality obligations.
6.3 Protection. Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care.
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts.
7. TERM AND TERMINATION
7.1 Agreement Term. The term of this Agreement shall commence on the Effective Date and continue until all Order Forms entered into hereunder have expired or been terminated. Except as otherwise specified in the applicable Order Form, each Order Form shall automatically renew for successive one (1) year periods, unless either party gives notice to the other party of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
7.2 Termination for Material Breach. Either party may terminate this Agreement (i) if the other party breaches any terms and conditions of this Agreement and does not cure such breach within thirty (30) days of receiving notice of such breach (the “Cure Period”); or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, this Agreement and any Order Form shall terminate automatically in the event Customer has breached any license restriction set forth in Section 3.1 and, in Company’s determination, that breach cannot be adequately cured within the Cure Period.
7.3 Effect of Termination. The following provisions shall survive the termination of this Agreement and all Order Forms: Section 2.3 and 2.4 (Ownership Rights), Section 3 (Restrictions, Responsibilities and Rights), Section 4 (Fees; Payment Terms), Section 5.5 (Disclaimer of Warranties), Section 6 (Confidential Information), Section 7.3 (Effect of Termination), Section 8 (Indemnity), Section 9 (Limitation of Liability), Section 10 (Export Compliance and U.S. Government Restricted Rights), and Section 11 (General Provisions).
8.1 Company will indemnify and hold Customer harmless from and against any claim against Customer by reason of Customer’s use of the Services as permitted hereunder brought by a third party alleging that the Services infringe or misappropriate a third party’s valid U.S. patent, copyright, trademark or trade secret. Company shall, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Company for such defense. If the Services, or parts thereof, become, or in Company’s opinion may become, the subject of an infringement claim, Company may, at its option: (a) procure for Customer the right to continue using the Services as set forth herein; (b) replace or modify the Services to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Company, terminate this Agreement and the applicable Order Form and refund Customer, on a pro-rated basis, any pre-paid Fees for any Services not received. THIS SECTION 8.1 STATES COMPANY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES OR COMPANY MATERIALS.
8.2 Company will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by Customer; (ii) modification of the Services by anyone other than Company or its authorized agents; (iii) the combination, operation, or use of the Services with other hardware or software not provided by Company or its authorized agents where the Services would not by itself be infringing; or (iv) any Customer Data or Customer Branding.
8.3 Customer will indemnify and hold Company harmless from and against any claim brought by a third party against Company arising from or related to (i) Customer’s violation of Section 3.1 of this Agreement or (ii) any Customer Data or Customer Branding.
8.4 The indemnification obligations in this Section shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.
9. LIMITATION OF LIABILITY
9.1 Waiver of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9.2 Limitation of Monetary Damages. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT OR ANY ORDER FORM, COMPANY’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT AND ANY ORDER FORM SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID BY CUSTOMER TO COMPANY UNDER THE APPLICABLE ORDER FORM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY.
9.3 Applicability. THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.
10. EXPORT COMPLIANCE AND U.S. GOVERNMENT RESTRICTED RIGHTS
10.1 Export Compliance. The Services and other software or components of the Services which Company may provide or make available to Customer may be subject to United States export control and economic sanctions laws and other foreign trade controls. Customer agrees to comply with applicable laws in connection with its performance hereunder, including without limitation, applicable U.S. and foreign export controls, economic sanctions, and other trade controls. Customer agrees to indemnify Company for any breach of this provision.
10.2 U.S. Government Restricted Rights. The Services and Documentation are “commercial items,” “commercial computer software” and “commercial computer software documentation,” pursuant to DFAR section 227.7202 and FAR section 12.212, as applicable. All the Services and Company Materials are and were developed solely at private expense. Any use, modification, reproduction, release, performance, display or disclosure of the Services, Company Materials and Documentation by the United States Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
11. GENERAL PROVISIONS
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.2 Notices. All notices required to be sent hereunder shall be in writing, addressed to receiving party’s current business contact, if known, with a cc: to the Legal Department of the receiving party, and sent to the party’s address as specified in the Order Form, or as updated by either party by written notice. Notices shall be effective upon receipt and shall be deemed to be received as follows: (i) if personally delivered by courier, when delivered; (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address; or (iii) if sent by email, upon confirmation of transmission.
11.3 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
11.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including any Order Forms), without the consent of the other party, to (i) an Affiliate; or (ii) 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 this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.6 Publicity. Neither Party shall, except as otherwise required by applicable laws or stock exchange requirements or permitted under this Agreement, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that Company may include Customer’s name and logo for the purpose of identifying Customer as a customer, including on Company’s public website and other promotional materials.
11.7 Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in Santa Clara County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
11.8 Force Majeure. Except for fees that become due and payable, neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is due to a Force Majeure Event. The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event.
11.9 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, sets forth the entire agreement of the parties and supersedes and replaces all prior or contemporaneous writings, negotiations and discussions, whether written or oral, with respect to its subject matter. Neither party has relied upon any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement. Company reserves the right to modify the terms and conditions of this Agreement, at its sole discretion, effective upon the commencement of any renewal subscription term. You are responsible for regularly reviewing this Agreement for updates. CONTINUED USE OF THE SERVICES AFTER ANY SUCH CHANGES SHALL CONSTITUTE YOUR CONSENT TO SUCH CHANGES. If Company modifies this Agreement during Customer’s subscription term, and Customer objects to the updated agreement, as Customer’s exclusive remedy, Customer may choose to terminate this Agreement prior to the next renewal term and cease using the Services. Notwithstanding any language to the contrary therein, no terms or conditions set forth on any Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.