For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity. “Customer Data” means all electronic data or information submitted by Customer and/or its Users to the Service which includes, without limitation, all electronic data or information transferred by Customer and/or Users to the Service from any Customer Service-Compatible Applications utilized by Customer and/or Users.
“Customer Service-Compatible Application(s)” means (i) an application that has been developed using the Service APIs by Customer or by a third party authorized by Customer to develop such an application for Customer, or (ii) a third-party cloud-based service that interoperates with the Service through the use of the Service APIs and that has been licensed by Customer from such third-party and which Customer wishes to use with the Service.
“Deliverable” means any software, studies, documentation and/or other materials prepared by Company for Customer as described in a SOW.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Professional Services” means the services to be provided by Company to Customer for the development of Deliverables, all as described in a SOW.
“Service” means Company’s cloud-based asset and maintenance management solution (Computerized Maintenance Management Software–CMMS or Enterprise Asset Management–EAM), including in each case the Service APIs. The “Service” excludes all Customer Service-Compatible Applications.
“Service APIs” means the APIs that are made publicly available in the Service for the purpose of integrating Customer Service-Compatible Applications with the Service and for the purpose of entering and extracting data from the Service.
“Statement of Work” or “SOW” means a statement of work for Professional Services and/or Deliverables that is executed by the parties, including, without limitation, training, implementation services and/or custom development.
“Subscription Fee” means the monthly or annual fees payable by Customer to Company for the right to receive access to the Service as specified in Schedule A.
“Subscription Period” means an initial subscription period and any renewal periods for the Service as specified in Schedule A.
“Term” has the meaning ascribed to that term in Section 10.1.
“User” means an individual or entity who is authorized by Customer to use the Service, and who has been supplied a user account and password by Customer (or by Company at Customer’s request) for the Service.
2. Grant of Rights.
2.1 Grant of Rights. Subject to the terms of this Agreement and payment of the applicable fees, Company grants Customer a limited, personal, non-sub-licensable, non-assignable, right to use and access the Service for Customer’s internal use during the Subscription Period (including the underlying software and technology contained therein (“Company Materials”) solely for the purposes of using and accessing the Service provided by Company and any permitted Customer Service-Compatible Application(s) (to the extent permitted by this Agreement)). Customer may also use Customer Service-Compatible Application(s) with the Service to the extent any such Customer Service-Compatible Application(s) are listed in Schedule A (and subject to any additional terms and conditions that may be specified in Schedule A for such Customer Service-Compatible Application(s)). Any software provided or made available is licensed, not sold.
2.2 Grant of Right Restrictions. Customer shall use and access the Service and the Customer Service-Compatible Application(s) solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Service and/or the Company Materials available to any third party. Customer shall not: (i) modify, reverse engineer, decompile, disassemble, or create derivative works based on the Service and/or the Company Materials except to the extent expressly agreed upon in writing or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (ii) circumvent any user limits or other use restrictions that are built into the Service and/or the Company Materials; or (iii) access the Service and/or the Company Materials in order to build competitive product(s) or service(s), or copy any ideas, features or graphics of the Service and/or the Company Materials.
2.3 Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement including payment of the applicable fees, Company shall make the Service available to Customer for Customer’s internal business use during the Subscription Period. Customer’s right to use and access the Service during the Subscription Period shall be in accordance with any additional conditions, restrictions or parameters specified in Schedule A. Company does not warrant or support Customer Service-Compatible Applications(s). Company is not responsible for any disclosure, modification or deletion of Customer Data resulting from access to or use by Customer of any Customer Service-Compatible Application(s).
2.4 User Accounts. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
2.5 Customer Affiliates. Customer Affiliates may procure subscriptions for the Service subject to the terms of this Agreement. Customer shall cause each Customer Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by such Customer Affiliate shall be deemed an act or omission of Customer. In addition, each party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.
3. Use of the Service.
3.1 Company Responsibilities. Company shall: (i) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for (A) planned downtime, (B) any circumstances outside of Company’s control as described in Schedule D, or (C) any downtime caused by Customer Service-Compatible Applications(s); (ii) maintain the security and integrity of the Service and the Customer Data; and (iii) provide support to Customer as per Schedule C.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Company promptly, and at least within 72 hours of becoming aware of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service and/or any Service Compatible Applications; (iv) be responsible for any Service Compatible Applications developed, purchased or licensed by Customer; and (v) provide consent for Company and its partners to send Customer publications, event invitations, news, product offerings, announcements and other communications about Company’s products and services via Company’s in-application marketplace, in-application notifications, or to Customer’s electronic address.
3.3 Use Guidelines. Customer shall not let its Users: (i) use the Service or any Customer Service-Compatible Application(s) in violation of applicable laws; (ii) use the Service or any Customer Service-Compatible Application(s) to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service or any Customer Service-Compatible Application(s) to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service or any Customer Service-Compatible Application(s) to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or any related systems or networks.
3.4 Customer as Controller. In the event that Customer or any of its Users are subject to the General Data Protection Regulation (the “GDPR”), or related laws including related laws of European Union member states: (i) Customer agrees it is the controller of Customer Data and that Company is a processor; and (ii) Customer represents that it has undertaken all requirements to comply with all privacy and data protection laws including but not limited to the GDPR. Such requirements may include but are not limited to maintaining adequate records and registration requirements with supervising or other regulatory authorities, and ensuring all personal data used in relation to the Service and/or any Customer Service-Compatible Application(s) is necessary for Customer’s legitimate interest, which is not overridden by fundamental rights of the subject individual, and otherwise that Customer has all rights and has obtained all necessary consents to collect, provide and manage all personal information in relation to the Service and the Customer Service-Compatible Application(s) and Company’s rights under this Agreement.
3.5 Professional Services. If Customer wishes to order Professional Services, Customer shall notify Company and the parties will negotiate in good faith an applicable SOW as a Schedule to this Agreement. Upon execution of an SOW by the parties and subject to the terms and conditions set forth in Schedule B, Company will provide Professional Services (including the development of Deliverables) for Customer all as described in such SOW.
3.6 Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
3.7 Integration with Customer Service-Compatible Applications. The Service may contain features designed to interoperate with Customer Service-Compatible Applications. Company cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation.
4. Fees and Payment.
4.1 Fees. In consideration for the receipt of the Service as specified in Schedule A, Customer shall pay Company the Subscription Fees, as specified in Schedule A and any Professional Services fees specified in any SOWs. All amounts are payable in United States dollars. Except as expressly stated in this Agreement all Subscription Fees paid are non-refundable.
4.2 Invoicing and Payment. Subscription Fees for the Service will be invoiced on an annual basis, unless otherwise specified in Schedule A. Professional Services will be invoiced as specified in the applicable Company order form. Payment terms are net thirty (30) days from the invoice date.
4.3 Taxes. Unless otherwise stated, Company’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Company’s net income or property. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4 Suspension of Service. If Customer’s account is fifteen (15) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Company reserves the right to suspend the Service and/or any Customer Service-Compatible Application(s), without liability to Customer, until such amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Subject to the limited rights expressly granted pursuant to this Agreement, Company reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
5.2 Restrictions. Customer shall not (and shall not allow any third party to): (a) use, or permit the use of, the Service and/or any Customer Service-Compatible Application(s) for an illegal purpose, criminal offense, intellectual property infringement, harassment, or in a manner that would cause interference with network operations; (b) resell, remarket, transfer or share the Service and/or any Customer Service-Compatible Application(s) or receive any charge or other benefit for the use of the Service and/or any Customer Service-Compatible Application(s); (c) attempt to bypass Company’s network, or re-arrange, disconnect, remove, repair, or otherwise interfere with any Service, or any of its facilities; (d) remove any proprietary notices, labels, or marks from the Service, or modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available through the Service; (e) frame or mirror any content forming part of the Service; or (f) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service.
5.3 Customer Data. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data provided, created, stored or processed through the Service. Customer Data is deemed Customer’s Confidential Information under this Agreement. Company shall only access Customer’s User accounts, including Customer Data, to respond to service or technical problems or as necessary for the operation of the Service or billing. Customer hereby grants Company a non-exclusive license to use and otherwise exploit the Customer Data as reasonably required to provide the Service and any Customer Service-Compatible Application(s) utilized by Customer and/or Users. The forgoing license shall include the right for Company to use and copy the Customer Data for the purpose of creating aggregated and/or anonymized statistical analytics in respect to Service use and other Service and User parameters and characteristics (“Aggregated Statistics”). For greater certainty, Company shall have all necessary rights to use the Aggregated Statistics without any requirement for Customer’s permission provided that the Aggregated Statistics do not identify Customer and cannot be traced back to Customer or any of Customer’s Users.
5.4 Suggestions. Company shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the Service and/or any Customer Service-Compatible Application(s).
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “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 and the circumstances of disclosure, including the terms and conditions of this Agreement (including, without limitation, pricing and other terms reflected in all SOWs pursuant to this Agreement), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include 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; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
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.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable 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 the 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 confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7. Warranties and Disclaimers.
7.1 Warranties. Each party warrants that it has the legal power to enter into this Agreement. Company warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from Customer or a User). If Customer believes there has been a breach of the warranty set forth in Section 7.1(i), then Customer must notify Company of such claim within ninety (90) days of the date of the alleged breach of such warranty.
7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, COMPANY MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME. FURTHER, COMPANY SHALL NOT BE RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, AND ANY OTHER PROBLEM INHERENT IN THE USE OF THE INTERNET AND/OR ELECTRONIC COMMUNICATIONS.
8. Mutual Indemnification.
8.1 Indemnification by Company. Subject to the terms and conditions of this Agreement, Company shall, at its own expense, defend Customer in any action, suit or proceeding by a third party alleging that the Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by Company in respect to an IP Claim and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in any such IP Claim. As conditions for such defense and indemnification by Company, (i) Customer shall notify Company promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Company sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with Company in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without Company’s written prior consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.
8.2 Mitigation. If (a) Company becomes aware of an actual or potential IP Claim, or (b) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, shall), at Company’s sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
8.3 Exclusions. The obligations in Sections 8.1 and 8.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by Company with other products, software or services not provided by Company (including, without limitation, Customer Service-Compatible Application(s)); (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement. This Section 8.1 and 8.2 sets forth Company’s sole liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement.
8.4 Indemnification by Customer. Subject to the terms and conditions of this Agreement, Customer shall, at its own expense, defend Company, its Affiliates and their directors, officers, employees and agents (the “Company Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Company Indemnitees alleging that the Customer Data, any Customer Service-Compatible Application(s), or Customer’s use of the Service in violation of this Agreement, infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party or violates any law (“Customer Claims”) and shall indemnify and hold the Company Indemnitees harmless from and against any settlement amounts agreed in writing by Customer in respect to any Customer Claims and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against any of the Company Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for such defense and indemnification by Customer, (i) Company shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) Company shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) Company shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) Company shall not settle any Customer Claims without Customer’s prior written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.
9. Limitation of Liability.
9.1 Limitation of Liability. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $500,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO CUSTOMER IN RELATION TO ANY FINES OR PENALTIES ARISING OUT OF CUSTOMER’S OR ITS USERS’ USE OF THE SERVICE.
9.3 Beneficiaries. Every right, exemption from liability, release, defense, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.
10. Term and Termination.
10.1 Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect for an initial term of one (1) year (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the term of the Agreement shall be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
10.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
10.3 Outstanding Fees. Termination or expiration of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination or expiration of this Agreement.
10.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Section 1 and Sections 4 through 11.
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. Any use of the term “partner” or “partnering” or similar terminology in this Agreement (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
11.2 No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
11.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Company shall be addressed to the attention of the Chief Executive Officer (CEO). Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
11.4 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 in this Agreement, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 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 effect.
11.6 Assignment. Neither party may assign any of its rights or obligations pursuant to this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all SOWs), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its business, stock or 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.
11.7 Governing Law. This Agreement shall be governed by the laws of the commonwealth of Virginia, USA, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
11.8 Venue; Waiver of Jury Trial. The state and federal courts located in Virginia, USA, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.9 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, epidemic or pandemic, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labor problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
11.10 Export. Customer acknowledges that the Service and Customer Service-Compatible Application(s) may be subject to various export and import controls and regulations. Customer agrees to comply with all applicable export and re-export laws and regulations, embargoes and sanctions including, but not limited to, those of the United States (collectively the “Export Laws”), and represents and warrants that all services provided hereunder, and any derivatives thereof will not be: (i) used, downloaded, exported, re-exported or transferred, directly or indirectly, contrary to the Export Laws; (ii) used for any purpose prohibited by the Export Laws, including but not limited to, the design, development, manufacture or production of nuclear, missile, chemical or biological weapons; and/or delivered to persons/entities otherwise ineligible to acquire or use the products or services provided hereunder. Customer shall be responsible for procuring all required government authorizations for any subsequent export, import or use of the Service and any Customer Service-Compatible Application(s) utilized by Customer.
11.11 Audit. Customer agrees that Company may audit Customer’s use of the Service for compliance with these terms, upon reasonable notice. Customer agrees to cooperate fully with Company and its authorized agents in any such audit to assist in accurately determining Customer’s compliance with the terms and conditions of this Agreement. Company and its authorized agents will comply with Customer’s reasonable security regulations while on Customer’s premises. In the event that such audit reveals any use of the Service by Customer other than in full compliance with the terms of this Agreement, Customer shall reimburse Company for all reasonable expenses related to such audit in addition to any other liabilities Customer may incur as a result of such non-compliance.
11.12 Entire Agreement. This Agreement, including all schedules, exhibits and addenda hereto and all SOWs constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the provisions in any schedule, exhibit, addendum or SOW attached to this Agreement, the terms of such schedule, exhibit, addendum, or SOW shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a 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.
11.13 Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
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