TERMS AND CONDITIONS

Background: Customer desires that the Provider provide Services and Software (as defined below) to Customer and Provider is highly skilled and experienced in providing the Services and Software required hereunder.

 

Now therefore, in consideration of the promises and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows:

 

1.         DEFINITIONS

 

Definitions. Whenever used in this Agreement, the following capitalized words, and phrases, unless the context otherwise requires, shall have the following meanings:

 

(a)        “Affiliates” means, with respect to a Party, any person or entity that controls such Party, is controlled by such Party or is under common control with such Party.

(b)       “Authorized User” means the specific individuals whom Customer designate to use the Software within the confines of the Fees.  Authorized Users may Customer’s or your Affiliates’ employees, representatives, consultants, contractors, agents or other third parties who are acting for your or your Affiliates’ benefit or on your or your Affiliates’ behalf.

 

(c)        “Confidential Information” has the meaning set forth in paragraph 7.1 herein;

 

(d)       “Deliverable” means any material to be provided by Provider pursuant to the Scope of Work;

(e)        “Disclosing Party” means a  Party to this Agreement disclosing confidential information to the Receiving Party;

(f)        "Documentation" means all written materials, binders, training disks, and other materials supplied by Provider and related to the Software, other than the Software;

(g)        “Fees” has the meaning set forth in paragraph 5.1 and the Subscription Order;

(h)       “Initial Term” has the meaning set forth in paragraph 6.1 herein;

(i)         "Intellectual Property" has the meaning set forth in paragraph 4.1 herein;

(j)         “License” means an agreement between the Provider and Customer pursuant to which the Customer is authorized to use certain Licensor Intellectual Property in connection with the Services.

 

(k)        “Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement;

 

(l)         “Renewal Term” has the meaning set forth in paragraph 6.1 herein;

(m)      “Services” means those services performed by Provider as enumerated in Schedule “A” of this Agreement.

(n)       “Specifications" means the technical and performance functions of the Software, as specifically set forth in Schedule “A”;

(o)       "Software” means the computer software identified in Schedule “A”; including related Documentation;

(p)       "Source Code" means a series of instructions or statements in a high level computer programming or scripting language that are (i) readable and understandable by humans trained in the applicable computer language and (ii) able to be transformed by an interpreter or compiler into machine-readable, executable code for actual use on a computer system;

(q)       “Support and Maintenance” means Provider’s support and maintenance services for the Software.

 

(r)        “Term” has the meaning set forth in paragraph 6.1 herein.

2.         SERVICES

 

2.1       Performance of Services.  Subject to the terms and conditions of this Agreement Customer hereby retains Provider to perform the Services as further detailed in Schedule A attached hereto and incorporated into this Agreement as though fully stated herein.

 

 

3.         LICENSE

 

3.1       License. Subject to, and in accordance with the terms and conditions of this Agreement, Provider hereby grants to Customer during the Term of this Agreement, an irrevocable fully paid-up, non-royalty bearing, non-sublicensable and non-transferable License for use of the Software for access by Customer and Customer’s Authorized Users.

 

3.2.      Restrictions. Except as otherwise expressly permitted in this Agreement, Customer will not: (a) reproduce, modify, adapt or create derivative works of any part of the Software; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate the Software into a product or service you provide to a third party; (e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to Provider; (g) remove or obscure any proprietary, attribution to Provider (including any links thereto) or other notices contained in the Software; (h) use the Software for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Software; or (j) encourage or assist any third party to do any of the foregoing.

 

4.         INTELLECTUAL PROPERTY RIGHTS

 

4.1       Intellectual Property.  "Intellectual Property" means any patent, copyright, trademark, trade name, service mark, service name, brand mark, brand name, logo, corporate name, industrial design, any registrations thereof and pending applications therefor (to the extent applicable), any other intellectual property right (including, without limitation, any know-how, trade secret, trade right, formula, conditional or proprietary report or information, customer or membership list, any marketing data, and any computer program, software, database or data right), and license or other contract relating to any of the foregoing, and any goodwill associated with any business owning, holding or using any of the foregoing.

 

4.2       Provider Intellectual Property.  The Parties acknowledge and agree that Provider may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, designs, know-how or other intellectual property owned by Provider or its licensors and Provider may also create additional intellectual property, in the performance of the Services (all of the foregoing, the “Provider Intellectual Property”). Customer agrees that any and all proprietary rights to the Provider Intellectual Property, as it existed as of the date hereof and as it may be modified or created in the course of providing the Services, including patent, copyright, trademark, and trade secret rights, to the extent they are available, are the sole and exclusive property of Provider, free from any claim or retention of rights thereto on the part of Customer, and Customer hereby assigns to Provider any rights it may have in any of the foregoing. Provider agrees that if in the course of performing the Services, Provider incorporates into the Services any Provider Intellectual Property, Provider shall grant to the Customer a nonexclusive, royalty-free, irrevocable, worldwide license to use such item as part of or in connection with the Services only for the purpose as contemplated by this Agreement and only until such time as this Agreement expires or upon early termination.

 

4.3       Customer Intellectual Property. The Parties acknowledge and agree that all Intellectual Property of Customer used during the Term of this Agreement and incorporated into the Services, including without limitation, copyright and trademark which are used in the Services (the “Customer Intellectual Property”) shall remain the sole and exclusive property of Customer. 

 

4.4       Work Product. “Work Product” means all patents and patent applications, all inventions (including without limitation all types of technical, artistic or commercial creative work), innovations, discoveries, creative works, works of authorship, improvements, research, developments, modifications, enhancements, software, computer programs, circuit and logic diagrams, circuit layouts, mask works, concepts, ideas, know-how, methods, methodologies, designs, formulae, formulations, drawings, processes, techniques, skills, algorithms, data, flow charts, sketches, schematics, drawings, blue prints, silk screens, models, plans, specifications, micro codes, lab books, documentation, research reports, analyses, all similar or related information (in each case whether patentable or not), all copyrights and copyrightable works, all trade secrets and confidential information, all trademarks, branding and service marks, and all other forms of intellectual property.

 

4.5       Not Work for Hire.  All Work Product performed by Provider in accordance with and during the term of this Agreement shall not be considered a “work made for hire” as defined in the U.S. Copyright laws and International law and shall be owned by the Company unless otherwise stated herein.

 

5.         FEES

 

5.1       Fees.  In consideration of the Services to be provided by Provider to Customer hereunder, Customer shall pay to Provider the amounts specifically set             out in the Subscription Order attached hereto and incorporated into this Agreement as though fully stated herein (the “Fees”).

 

5.2       Payments. Provider shall invoice Customer as set out in the Subscription Order.  Invoices shall be due and payable on the first day of each Subscription period. Except as provided herein, any amounts not paid by Customer when due to Company shall be subject to interest charges, from the date due until paid, at the rate of one- and one-half percent (1.5%) per month or the highest interest rate allowable by law (whichever is less), payable monthly. If any amounts due to Company from Customer become thirty (30) days past due for any reason, Company may at its option and without further notice withhold further Services until all invoices have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Company’s obligations under this Agreement..

 

5.3       Reimbursable Expenses.  Customer shall reimburse Provider for out of pocket costs and expenses incurred by Provider in performing the Services under this Agreement, subject to written prior approval from Customer.

 

5.4       Taxes. Customer shall be solely responsible for payment of any taxes that may become due as a result of entering into this Agreement, including, but not limited to, any applicable sales or use taxes, value added taxes, goods and services taxes, intangible taxes, and property taxes, but excluding taxes based on income to Provider.

 

6.         TERM AND TERMINATION

 

6.1       Term.  Unless earlier terminated pursuant to this Section, this Agreement shall begin on the Effective Date and continue for a period as stated in the Subscription Order (the “Initial Term”), after which, this Agreement will auto-renew for additional periods of equal duration (each, a “Renewal Term” and collectively with the Initial Term, the “Term”).

 

6.2       Termination for Convenience.  Customer may terminate this Agreement by providing the Provider written notice of termination which shall be effective as of the end of the then current Term.  Provider does not issue partial refunds for the remainder of the then current Term.

 

6.3       Termination for Non-Payment.  If payment of any fees, or any other amounts due to Provider under this Agreement, are not paid within sixty (60) days  of Customer’s receipt of the invoice and Customer fails to cure such delinquency within ten  (10) days after receipt of  notice of such delinquency, then Provider may, in its sole discretion, immediately terminate this Agreement on written notice to Customer.

 

6.4       Termination for Cause.  This Agreement may be terminated by a Party on thirty (30) days’ written notice to the non-terminating party if the non-terminating party commits a material breach of this Agreement unless the defaulting party cures its alleged breach (if curable) during the Cure Period.

 

6.5       Outstanding Fees. Termination of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to Provider prior to the effective date of termination.

 

7.         CONFIDENTIAL INFORMATION

 

7.1       Confidential Information. “Confidential Information” under this agreement shall mean any and all information, proprietary and/or maintained in confidence by the Disclosing Party, including without limitation, any information relating to the Disclosing Party’s ideas, concepts, techniques, inventions, know how (including patents, copyrights, and trade secrets), sketches, drawings, models, processes, materials, operations, algorithms, software programs, source code, experimental work, research and development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, vendor lists, contact lists, business forecasts, sales and merchandising, marketing plans,  and information, disclosed by Disclosing Party or obtained by Receiving Party either directly or indirectly, in writing, orally or by inspection of tangible objects or by the viewing of product demonstrations which is designated or described by the Disclosing Party as “Confidential,” “Proprietary” or some similar designation, and/or which should reasonably be understood by the Receiving Party, or any of Receiving Party’s employees, directors, representatives, shareholders, or agents (collectively the “Receiving Party Representatives”) because of the circumstances of disclosure or the nature of the information itself to be confidential or proprietary to the Disclosing Party, regardless of whether obtained before, on or after the date of this agreement. Confidential Information also includes proprietary or Confidential Information of any third party who may disclose such information to the Receiving Party on behalf of the Disclosing Party. pursuant or otherwise relating to this Agreement.

 

7.2       Non-disclosure and Non-use.  Receiving Party agrees to use the Confidential Information for the sole purpose contemplated by this Agreement. Receiving Party agrees that neither it nor any of Receiving Party Representatives will use for Receiving Party’s own benefit or in any way disclose any Confidential Information to any person, firm or business, except for the sole purpose set forth in this Agreement or for any other purpose the Disclosing Party may hereafter authorize in writing.  Receiving Party shall treat all Confidential Information with the same degree of care as Receiving Party accords to Receiving Party’s own Confidential Information, but in no case less than reasonable care. Receiving Party agrees to disclose Confidential Information only to those of such Receiving Party’s employees who need to know such information, determined in Receiving Party’s sole discretion, and Receiving Party certifies that such Receiving Party’s employees have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to such Receiving Party under this Agreement, such agreement to be provided to Disclosing Party upon request.  Receiving Party shall not make any copies of the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent. Receiving Party shall not reverse engineer, disassemble or decompile any materials or objects which embody the Disclosing Party’s Confidential Information. Receiving Party shall immediately give notice to the Disclosing Party of any unauthorized use or disclosure of Confidential Information. Receiving Party agrees to assist the Disclosing Party in remedying any such unauthorized use or disclosure of Confidential Information.

 

7.3       Exceptions.  The obligations of Receiving Party with respect to any portion of the Confidential Information shall not apply to such portion that Receiving Party can document: (a) was in the public domain at or subsequent to the time such portion was communicated to Receiving Party through no fault of Receiving Party, (b) was rightfully in Receiving Party's possession free of any obligation of confidence at or            subsequent to the time such portion was communicated to Receiving Party, (c) was developed by employees or agents of Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party, or (d) is requested or legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or similar processes), or is required by a regulatory body, to be disclosed. In the event  Receiving Party is required to disclose any Confidential Information in accordance with this subsection, Receiving Party will notify Disclosing Party     promptly so that Disclosing Party may seek a protective order or other appropriate remedy. In the event that no such protective order is obtained before such Confidential Information or other information is required to be disclosed, the    Receiving Party or its applicable representative, as the case may be, will furnish    only that portion of such Confidential Information or other information which it is advised by its legal advisers is required to be disclosed.  In addition, to the extent legally permissible, Receiving Party will provide Disclosing Party, in advance of any such disclosure, with copies of any such Confidential Information or other information that Receiving Party intends to disclose and will reasonably cooperate with Disclosing Party to the extent Disclosing Party may seek to limit such disclosure.

 

7.4       Return of Confidential Information and Other Materials. Promptly upon request from the Disclosing Party, the Receiving Party shall, at Disclosing Party’s option, redeliver to the Disclosing Party or destroy all Confidential Information and     any other materials containing, prepared on the basis of, or reflecting any information in, the Confidential Information, including without limitation, all reports, analyses, compilations, studies and other materials containing or based on the Confidential Information, and Receiving Party will not retain any copies or other reproductions of such Confidential Information and/or materials. Upon the request of the Disclosing Party, any such destruction shall be certified in writing by the Receiving Party. Notwithstanding the foregoing, the Receiving Party may retain such of its documents as required to comply with mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation. 

 

7.5       No Warranties. All confidential information is provided “as is” and Disclosing Party makes no warranties, express, implied, or otherwise, regarding its accuracy, completeness, or performance or fitness for any purpose.

 

7.6       Term of Confidentiality. Subject to paragraph 7.3 herein, the obligations of Receiving Party hereunder as to any Confidential Information shall be effective during the Term of this Agreement and for a period of five (5) years after the   expiration or earlier termination hereof or until such information is no longer a trade secret of the Disclosing Party, whichever occurs later in time.

 

7.7       Damages and Injunctive Relief. In acknowledging the unique and proprietary nature of the Confidential Information, Receiving Party acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party and that Disclosing Party may suffer great and irreparable injury as a consequence of such breach.  Consequently, Disclosing Party shall be entitled to seek equitable relief, including injunction, court order, and/or specific performance, as a remedy for such breach and/or to protect the confidentiality of its Confidential Information and to halt any unauthorized disclosure thereof.  Such remedies shall not be deemed to be exclusive remedies             for a breach by the Receiving Party but shall be in addition to any and all other remedies provided hereunder or available at law or equity to the Disclosing Party.

 

8.         REPRESENTATONS, WARRANTS AND COVENENANTS

 

8.1       Customer represents, warrants and covenants for Provider’s benefit alone that at all times during the Term: (i) Customer has the right, power and authority to enter into and perform its obligations under this Agreement, (ii) Customer represents and warrants that it is a corporation duly incorporated, duly organized, validly existing, and in good standing under the laws of the state of its domicile and is authorized to do business in each jurisdiction in which it conducts its business, (iii) the making and performance of this Agreement by Customer does and will not violate any agreement between it and any other person or entity; and (iv) Customer owns or shall obtain all right, title and interest in and to, or a full and sufficient right and authority to use any data, materials, information and other items or works that Customer provides to Provider in connection with this Agreement. Customer is responsible for, and Provider shall have no obligation or responsibility related to, ensuring that its systems and production environment meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. 

 

8.2       Provider represents, warrants and covenants for Customer’s benefit alone that at all times during the Term: (i) Provider has the right, power and authority to enter into and perform its obligations under this Agreement, (ii) Provider represents and warrants that it is a corporation duly incorporated, duly organized, validly existing, and in good standing under the laws of the state of its domicile and is authorized to do business in each jurisdiction in which it conducts its business, (iii) the making and performance of this Agreement by Provider does and will not violate any agreement between it and any other person or entity; and (iv) Provider owns or shall obtain all right, title and interest in and to, or a full and sufficient right and authority to use any data, materials, information and other items or works that Provider provides to Customer in connection with this Agreement;  (v) neither Provider’s grant of rights or licenses under this Agreement nor its performance of any obligations under this Agreement does or will violate the terms of any agreement existing between Provider and any other person or entity. Notwithstanding anything to the contrary herein and for the avoidance of doubt, provider warrants that all Services provided hereunder will be performed in a good and workmanlike manner and in accordance with the specifications in this agreement.

 

8.3       Security Policy.  Provider represents that it shall:

 

(i) actively monitor industry resources for timely notification of applicable security alerts that pertain to Provider's technical resources;

 

(ii) no less than once per calendar month, scan Provider's technical resources with industry-standard security vulnerability scanning software designed to detect security vulnerabilities, and remediate all critical, high, and medium risk security vulnerabilities identified;

 

(iii) maintain and adhere to a documented process designed to known remediate security vulnerabilities;

 

(iv) assign security administration responsibilities for configuring the security parameters to authorized users only;

 

(v) harden Provider's technical resources by utilizing a minimum security baseline configuration based upon industry- standard practices to reduce available ways of attack;

 

(vi) limit authorized system administrators access to operating systems intended for use by multiple users to individuals requiring such high-level access in the performance of their jobs;

 

(vii) enforce the rule of least privilege by requiring application, database, network and system administrators to restrict access by users;

 

(viii) use industry-standard encryption for the transfer of all data;

 

(ix) require multi-factor authentication for use by all Provider's employees;

 

(x) maintain and adhere to documented processes and controls designed to detect and terminate unauthorized attempts to access of Customer Data; and monitor and remediate unauthorized access to system and application configuration files.

 

9.         WARRANTY DISCLAIMERS

 

 

9.1       WARRANTY DISCLAIMER. PROVIDER MAKES NO REPRESENTATIONS AND GRANTS, WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, UNDER THIS AGREEMENT, AND PROVIDER SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES UNDER THIS AGREEMENT. CUSTOMER’S USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

 

10.       SERVICE AVAILABILITY

 

10.1     Service Level.   The Services shall be available to Customer with a 99.0% uptime basis, of 24x7x365, for each calendar month, where “Uptime” is defined as servers having power, connectivity to the Internet, and being responsive to a ping, and excludes service interruptions (or downtime) caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time, of which you have been notified, (2) emergency maintenance, (3) interruptions caused by you from actions or inactions that result in a lack of uptime; (4) causes beyond our control or that are not reasonably foreseeable, including Force Majeure events; (5) outages related to the reliability of certain programming environments, (6) problems caused by your physical location, (7) outages in the Microsoft devices and APIs, and/or (8) Customer’s equipment or third-party computer hardware, software or network infrastructure not within the sole control of Customer.

 

10.2     Service Credit.  Should the monthly Uptime fall below the agreed to 99.0% for any month, Customer shall be entitled to a credit equal to that of one (1) day of the cost of the Service.

 

11.       LIMITATION OF LIABLITY

 

 

11.1     LIMITATION OF LIABILITY.  TO THE EXTENT PERMITTED BY APPLICABLE LAW A PARTY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, A PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT, OR FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES RELATING TO THE SERVICES, WHETHER BASED ON TORT, CONTRACT, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO PROVIDER WITHIN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.  THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PROVIDER AND CUSTOMER. THE SERVICES OFFERED ON AND THROUGH THE SERVICE WOULD NOT BE PROVIDED TO CUSTOMER WITHOUT SUCH LIMITATIONS. AS SOME JURISDICTIONS DO NOT ALLOW SOME OF THE EXCLUSIONS OR LIMITATIONS AS SET FORTH ABOVE, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO A PARTY IN SUCH EVENT SUCH PARTY’S LIABILITY WILL BE LIMITED AS FAR AS LEGALLY POSSIBLE UNDER APPLICABLE LAW. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE AMOUNT OF THE COMPENSATION CONTEMPLATED UNDER THIS AGREEMENT.

 

11.2     NOTWITHSTANDING ANYTHNG TO THE CONTRARY HEREIN, THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO AND ARE DAMAGES EXCEPTIONS WITH REGARD TO ANY LIMITATION (A) A PARTY’S VIOLATION OF THE CONFIDENTIALITY OBLIGATIONS, (B) A PARTY’S INDEMNIFICATION OBLIGATIONS, (C) A VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, (D) A VIOLATION OF ANY PROVISION IN THIS AGREEMENT RESTRICTING ACCESS TO OR THE USE OR DISSEMINATION OF A PARTYS’ SOURCE CODE OR COMPILED CODE, (E) FRAUDULENT OR WILLFUL MISCONDUCT OR (F) A CLAIM BY PROVIDER FOR FEES OWED PURSUANT TO SECTION 5 OF THIS AGREEMENT, INCLUDING REASONABLE ATTORNEY’S FEES AND COSTS IN A DISPUTE TO RECOVER SUCH AMOUNTS (COLLECTIVELY, THE “DAMAGES EXCEPTIONS”).

 

 

12.       INDEMNIFICATION

 

11.1     Mutual Indemnification.  Each Party hereby agrees to indemnify, defend and hold harmless the other Party and their respective directors, employees and agents from and against any and all suits, claims, actions, demands, liabilities, expenses and/or losses, including reasonable legal expenses and reasonable attorneys’ fees (“Losses”) to the extent such Losses result from any: (a) breach of warranties or covenants contained in the Agreement by the indemnifying Party; (b) breach of the Agreement or applicable law by such indemnifying Party; and/or (c) negligence or willful misconduct of the indemnifying Party.

           

 

13.       RESTRICTIVE COVENANTS

 

13.1     Non-Solicitation. During the Term of this Agreement and for a period of twelve (12) months following the expiration or early termination of this Agreement,  a Party shall, not, on its own behalf or on behalf of any person, firm or corporation, or in any capacity whatsoever, either directly or indirectly induce, suggest, persuade or recommend to any customers of the other party that they terminate, alter or refrain from entering into, renewing or extending their relationship with the other party. Additionally, during the Term of this Agreement and for a period of twelve (12) months following the expiration or early termination of this Agreement Party shall not, without written approval, on its own behalf or on behalf of any person, firm or corporation, or in any capacity whatsoever, recruit for employment, hire or induce any employee or contractor to terminate employment with the other Party The foregoing restrictions shall not apply to any solicitation by means of a general public advertisement or recruitment not specifically targeted at the other Party’s customers or employees or contractors, as the case may be.

 

13.2     Non-Competition. To the extent permitted by law, during and upon the expiration or earlier termination of this Agreement, and for a period of five (5) years thereafter, neither party shall engage, own, manage, control, operate, be employed by, participate in, or be connected with the ownership, management, operation, or control of a business substantially similar to or offering to the commercial market substantially similar services or products of the other party. If  either party breaches or threatens to breach this section, the non-breaching Party will be entitled to a preliminary restraining order and injunction preventing the breaching party from violating its provisions. Nothing in this agreement prohibits either party from pursuing any other available remedies for a breach or threatened breach, including the recovery of damages. Notwithstanding the forgoing, nothing herein shall prohibit either party from being a passive owner of not more than five percent (5%) of the equity securities of a competitor that is publicly traded, so long such party has no active participation in the business of such competitor

 

13.3     Non-Circumvention.  A Party will not make any attempt, or use any artifice, scheme, or device, including the use of any agent, representative, associate, advisor, relative or business entity, to circumvent the purposes of the restrictive covenants contained in this paragraph 10.

 

14.       PUBLICITY

 

14.1     Publicity Rights. Provider may identify Customer as a customer of Provider in its promotional materials, subject to approval of Customer.

 

15.       DISPUTE RESOLUTION

 

15.1     Arbitration. Any dispute, controversy or claim arising out of or related in any way to this Agreement or any Services performed hereunder which cannot be amicably resolved by the Parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. The arbitration shall be conducted before a tribunal composed of three neutral arbitrators each of whom shall sign an oath agreeing to be bound by the code of ethics for arbitrators in commercial disputes promulgated by the AAA for neutral arbitrator. Each Party shall appoint an arbitrator who will in turn choose a third arbitrator. Arbitration shall take place in or near San Jose, California, except that the meeting of the Parties and the arbitration tribunal may be conducted virtually in accordance with the instructions of the tribunal. The decision of the tribunal shall be in writing with written findings of fact and shall be final and binding on the Parties. This Section 14.1 provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement, except as may be otherwise stated herein.

 

15.2     Applicable Law, Venue.  This Agreement shall be governed by the laws of California, without reference to conflict of law principles.  The parties agree that the United Nations Convention on Agreements for the International Sale of Goods shall not apply to this Agreement.  Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. The Parties agree that the venue for any matter arising out of or pertaining to enforcement of an arbitration decision or other matter not related to arbitration,  as related to this Agreement shall be held  in the state and federal courts located in Santa Clara, State of California. IN NO EVENT SHALL ANY CLAIM, ACTION OR PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT BE INSTITUTED MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE.

 

15.3     WAIVER OF JURY TRIAL.  CUSTOMER AND PROVIDER EACH IRREVOCABLY WAIVE TRIAL BY JURY IN AN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT.

 

15.4     Attorney Fees. In the event that any dispute between the Parties  should result in            litigation or arbitration, the prevailing Party in such dispute shall be entitled to recover from the other Party all reasonable fees, costs and expenses of enforcing any right of the prevailing Party, including without limitation, reasonable attorneys' fees and expenses, all of which shall be deemed to have accrued upon the commencement         of such action and shall be paid whether or not such action is prosecuted to judgment. Any judgment or order entered in such action shall contain a specific provision providing for the recovery of attorney fees and costs incurred in enforcing such judgment and an award of prejudgment interest from the date of the breach at the maximum rate allowed by law. For the purposes of this Section: (a) attorney fees shall include, without limitation, fees incurred in the following: (1) post         judgment motions, (2) contempt proceedings, (3) garnishment, levy, and debtor and   third party examinations, (4) discovery, and (5) bankruptcy litigation; and (b) “Prevailing Party” shall mean the Party who is determined in the proceeding to have prevailed or who prevails by dismissal, default or otherwise.

 

16.       GENERAL PROVISIONS

 

16.1     Force Majeure.  Neither party shall be liable to the other by reason of any failure of performance hereunder (except failure to pay) if such failure arises out of strikes, lock-outs or other labor disputes, riots, civil disturbance, actions or inaction of governmental authorities or suppliers, epidemics, wars, embargoes, storms, floods, fires, earthquakes, acts of God or the public enemy, widespread power outage, nuclear disasters or default of a common carrier (each a “Force Majeure Event”). Lack of finances or a mere failure to have adequate and suitable equipment, material, labor forces, or other facilities available to perform shall not constitute a Force Majeure Event. Any party experiencing a Force Majeure Event shall give as prompt notice as is possible under the circumstances. In the case of such Force Majeure Event, the time for performance required by a party under this Agreement will be extended by the length of any period during which performance is prevented by the Force Majeure Event. Furthermore, if such extension interferes with the other party’s ability to perform its obligations, then the time for other party’s performance will also be extended.  Notwithstanding the above, if a delay or failure by a party to perform its obligations under this Agreement due to a Force Majeure Event exceeds forty-five (45) Business Days, any party may terminate this Agreement effective upon ten (10) business days written notice to the other party.

 

16.2     Relationship of the Parties The relationship of the parties established by this Agreement is solely that of independent contractors, and nothing contained in this Agreement shall be construed to (a) give any party the power to direct and control the day to day activities of the other; or (b) constitute such parties as Customers, co owners or otherwise as participants in a joint or common undertaking; or (c) make either party an agent of the other for any purpose whatsoever.  Neither party, nor their agents or employees, shall be deemed representatives of the other for any purpose, nor shall either party have the power or authority to act as agent or employee to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other.

 

16.3     Entire Agreement.  The Agreement, and any Schedules, Exhibits and Statements of Work  thereto, constitutes the entire agreement between the parties and contains all of the agreements between the parties with respect to the subject matter hereof; this Agreement supersedes any and all other agreements, either oral or in writing (including any interim agreements executed by the parties), between the parties hereto with respect to the subject matter hereof.  No change or modification of this Agreement shall be valid unless the same be in writing and signed by an officer of Customer and Provider, respectively. 

 

16.4     Notices. All notices required under this Agreement shall be made in writing and sent to a party at their address listed below unless either party notifies the other party in writing of a change of address in accordance with the provisions of this paragraph. Notices are deemed to be effective and invoices received on the earlier of: (i) the date the notice or invoice is actually delivered to the addressee, or (ii) on the date of guaranteed delivery if the notice or invoice is sent by a recognized express courier.

 

 

16.5     Assignment.  Neither party will have the right to assign, pledge or transfer all or any part of this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed, except that Provider may assign this Agreement or an Affiliate or in connection with any merger, consolidation, sale of the relevant assets or any other transaction in which substantially all of the equity or assets of the business unit of Provider responsible for the performance of this Agreement are transferred.  

 

16.6     Severability. If any provision of this Agreement is held by a competent court to be invalid or unenforceable under applicable law, then such provision shall be severed from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so severed and shall be enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the severed provision as determined by the Parties or as determined by court of competent jurisdiction.

 

16.7     Waiver.  No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by either party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or of any other covenant.  All waivers must be in writing and signed by the party waiving its rights.

 

16.8     Survival of Provisions.  Section 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, and15, along with any other provisions of this Agreement, which by their nature survive termination and all accrued and unpaid obligations arising hereunder shall survive the expiration or termination of this Agreement for any reason.

 

16.9     Approvals and Similar Actions.  Where agreement, approval, acceptance, consent, or similar action by either party is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld, unless specifically permitted by this Agreement.

 

16.10   Interpretation. The paragraph headings of this Agreement are inserted for convenience only and shall not constitute a part of this Agreement for the purposes of construing or interpreting any provision hereof.  Whenever the context requires, words used in the singular shall be construed to include the plural and vice versa, and pronouns of any gender shall be deemed to include and designate the masculine, feminine or neutral gender.

 

16.11   Counterparts.  This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the parties.

 

16.12   Reasonable Efforts. Each Party shall use all reasonable efforts to take  all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.

 

EACH PARTY REPRESENTS AND WARRANTS that it has authority to enter into this Agreement and lawfully make the representations contemplated hereunder.

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