THIS MASTER SUBSCRIPTION AGREEMENT
(“AGREEMENT”) GOVERNS YOUR 30-DAY FREE TRIAL OF THE AKUCAST APPLICATION AND/OR
RELATED SERVICES.
IF YOU PURCHASE SUBSCRIPTIONS TO THE AKUCAST APPLICATION AND/OR RELATED
SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE OF SUCH SUBSCRIPTIONS
AND/OR RELATED SERVICES AND YOUR ONGOING USE OF THOSE SUBSCRIPTIONS AND
SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR
ACCEPTANCE AND/OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT,
YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS
AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU
HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND
CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL
REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF
YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS
AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with
Our prior written consent. In addition, You may not access the Services for
purposes of monitoring their availability, performance or functionality, or for
any other benchmarking or competitive purposes.
This Agreement was last updated on August 12, 2019. It is effective between You
and Us as of the date of You accepting this Agreement.
1. DEFINITIONS
“Affiliate” means any entity which directly or indirectly controls, is
controlled by, or is under common control with the subject entity.
“Control,” for purposes of this definition, means direct or indirect
ownership or control of more than 50% of the voting interests of the subject
entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and
other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the ordering documents for purchases hereunder,
including addenda thereto, that are entered into between You and Us from time
to time. Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means Services that You or Your Affiliates
purchase under an Order Form, as distinguished from those provided pursuant to
a free trial.
“Services” means the online, Web-based applications and platform
provided by Us via https://www.salesforce.com and/or other designated websites
as described in the User Guide, that are ordered by You or Your Affiliates as
part of a free trial or under an Order Form, including any associated offline
components but excluding Third-Party Applications.
“Subscription Term” means the period of time from the start date to the end
date specified in each Order Form for each subscription purchased thereunder.
Each renewal of a subscription, whether automatic or in writing, shall
constitute a new Subscription Term.
“Third-Party Applications” means online, Web-based applications and
offline software products that are provided by third parties but may be
configured to interoperate with the Services, including but not limited to
those listed on the AppExchange.
“User Guide” means the online user guide for the Services, accessible via https://www.akucast.com,
as updated from time to time. You acknowledge that You have had the opportunity
to review the User Guide during the free trial described in Section 2 (Free
Trial) below.
“Users” means individuals who are authorized by You to use the
Services, for whom subscriptions to the Services have been purchased, and who
have been supplied user identifications and passwords by You (or by Us at Your
request). Users may include but are not limited to Your employees, consultants,
contractors, and agents; or third parties with which You transact
business.
“We”, “Us”, or “Our” means Accurate4cast,
Inc.
“You” or “Your” means the company or other legal entity for
which You are accepting this Agreement, and Affiliates of that company or
entity.
“Your Data” means all electronic data or information submitted by You
to the Services.
2. FREE TRIAL
We will make the standard version of the Services available to You on a trial
basis free of charge until the start date of any Purchased Services ordered by
You or thirty (30) days from the start of the trial, whichever comes first.
Additional trial terms and conditions may appear on the trial registration web
page. Any such additional terms and conditions are incorporated into this
Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY IMPLEMENTATION MADE TO THE
SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS
YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL,
PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL
PERIOD.
NOTWITHSTANDING SECTION 8 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL,
THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, WE MAY IMMEDIATELY, UPON
NOTICE AND WITHOUT THE OPPORTUNITY TO CURE, TERMINATE YOUR ACCESS TO THE
SERVICES DURING ANY TRIAL PERIOD IF YOU AND/OR YOUR USERS MATERIALLY BREACH
THIS AGREEMENT.
Please review the User Guide during the trial period so that You become
familiar with the features and functions of the Services before You make Your
purchase.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services. We shall make the Purchased Services
available to You pursuant to this Agreement and the relevant Order Forms during
each Subscription Term and your timely payment of all applicable fees. You
agree that Your purchases hereunder are neither contingent on the delivery of
any future functionality or features nor dependent on any oral or written public
comments made by Us regarding future functionality or features.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order
Form, (i) Purchased Services are purchased as User subscriptions and may be
accessed by no more than the specified number of Users, (ii) additional User
subscriptions may be purchased during the Subscription Term by signing an
additional Order Form and paying the additional fees for such additional User
subscriptions, prorated to reflect the effective date of the Order Form under
which they are purchased, and (iii) the added User subscriptions shall
terminate on the same date as the pre-existing subscriptions. User
subscriptions are for 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 Services.
4. USE OF THE SERVICES
4.1 Our Responsibilities. In addition to providing the Purchased Services as
described in Section 3.1, We shall provide You with basic support, in
accordance with Our then-current support policy for the Purchased Services,
during the applicable Subscription Term. The current version of the support
policies can be found at https://www.akucast.com/supportpolicies. You
acknowledge that availability of the Services depends upon the availability of
Salesforce.com and the Force.com platform and that We have no control over such
availability. Accordingly, We make no representations, warranties, or covenants
regarding the availability of the Services to the extent that such availability
depends upon the availability of Salesforce.com and the Force.com
platform.
4.2. Your Responsibilities. You shall (a) be responsible for Users’ compliance
with this Agreement, (b) be solely responsible for the accuracy, quality,
integrity, and legality of Your Data and of the means by which You acquired
Your Data, (c) use commercially reasonable efforts to prevent unauthorized
access to or use of the Services, and notify Us promptly of any such unauthorized
access or use, and (d) use the Services only in accordance with the User Guide
and applicable laws and government regulations. You shall not (u) make the
Services available to anyone other than Users, (v) sell, resell, rent or lease
the Services, (w) use the Services to store or transmit infringing, libelous,
or otherwise unlawful or tortious material, or to store or transmit material in
violation of third-party privacy rights, (x) use the Services to store or
transmit Malicious Code, (y) interfere with or disrupt the integrity or
performance of the Services or third-party data contained therein, or (z)
attempt to gain unauthorized access to the Services or their related systems or
networks.
4.3. Your Data. The Services access and process Your Data in order to generate
reports, forecasts, analyses, documents, and/or results. If You choose to save
such output, it will be stored in a location of Your choosing. We have no
control over (and, accordingly, make no representations, warranties, or
covenants regarding) the storage, accessibility, or protection of Your Data by
Salesforce.com or any other providers with whom You may store Your Data or
whose services are required for the storage, accessibility, or protection of
Your Data. We will not access Your Data except (a) as necessary to provide the
Services; (b) at Your request, to provide technical support or to assist in the
implementation or configuration of the Services; or (c) as compelled by law in
accordance with Section 7.4 (Compelled Disclosure).
4.4. Usage Limitations. The Services may be subject to other limitations, such
as, for example, limits on the number of calls You are permitted to make
against Our application programming interface. Any such limitations are
specified in the User Guide.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. User Fees. You shall pay all fees specified in all Order Forms hereunder.
Except as otherwise specified herein or in an Order Form, (a) fees are quoted
and payable in United States dollars, (b) fees are based on services purchased
and not actual usage, (c) payment obligations are non-cancellable and fees paid
are non-refundable, and (d) the number of User subscriptions purchased cannot
be decreased during the relevant Subscription Term stated on the Order Form. User
subscription fees are based on annual periods that begin on the subscription
start date and each year anniversary thereof; fees for User subscriptions added
in the middle of a yearly period will be prorated based on the month in which
they are added and thereafter will be charge for the full yearly periods
remaining in the Subscription Term.
5.2. Invoicing and Payment. Fees will be invoiced in advance and otherwise in
accordance with the relevant Order Form. Unless otherwise stated in the Order
Form, fees are due net 30 days from the invoice date. You are responsible for
maintaining complete and accurate billing and contact information with Us, as
well as for payment of any fees or charges associated with Your payment, other
than those charged by Our bank.
5.3. Overdue Charges. If any fees are not received from You by the due date,
then at Our discretion, (a) such fees may accrue late interest at the rate of
1.5% of the outstanding balance per month, or the maximum rate permitted by
law, whichever is lower, from the date such payment was due until the date paid
and/or (b) We may condition future subscriptions on payment terms shorter than
those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Services. If any amount owing by You under this Agreement
for the Services is 30 or more days overdue, We may, without limiting Our other
rights and remedies, suspend Your access to the Services until such amounts are
paid in full.
5.5. Payment Disputes. We shall not exercise Our rights under Section 5.3
(Overdue Charges) or 5.4 (Suspension of Services) until after 60 days from the
payment due date if the applicable fees are under reasonable and good-faith
dispute and You are cooperating diligently to resolve the dispute.
5.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies,
duties, or similar governmental assessments of any nature, including but not
limited to value-added, sales, use, or withholding taxes, assessable by any
local, state, provincial, federal, or foreign jurisdiction (collectively,
” Taxes”). You are responsible for paying all Taxes associated with
Your purchases hereunder. If We have the legal obligation to pay or collect
Taxes for which You are responsible under this Section 5.6, the appropriate
amount shall be invoiced to and paid by You, unless You provide Us with a valid
tax exemption certificate authorized by the appropriate taxing authority.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights. Subject to the limited rights expressly granted
hereunder, We and Our licensors reserve all rights, title, and interest in and
to the Services, including all related intellectual property rights. No rights
are granted to You hereunder other than as expressly set forth herein.
6.2. Restrictions. You shall not (a) permit any third party to access the
Services except as expressly permitted herein or in an Order Form, (b) create
derivate works based on the Services, (c) copy, frame, or mirror any part or
content of the Services, other than copying or framing on Your own intranets or
otherwise for Your own internal business purposes, (d) reverse engineer the
Services, or (e) access the Services in order to (i) build a competitive
product or service or (ii) copy any features, functions, or graphics of the
Services.
6.3. Ownership of Your Data. As between Us and You, You exclusively own all
rights, title, and interest in and to all of Your Data.
6.4. Suggestions. We shall have a royalty-free, worldwide, transferable,
sublicenseable, irrevocable, perpetual license to use or incorporate into the
Services any suggestions, enhancement requests, recommendations, or other
feedback provided by You, including Users, relating to the functionality and/or
operation of the Services.
7. CONFIDENTIALITY
7.1. Definition of Confidential Information. As used herein, ”
Confidential Information” means all confidential information disclosed by
a party (“Disclosing Party”) to the other party (“Receiving
Party”), whether electronically, 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. Your
Confidential Information shall include Your Data; Our Confidential Information
shall include the Services; and Confidential Information of each party shall
include the terms and conditions of this Agreement and all Order Forms, as well
as business and marketing plans, technology and technical information, product
plans and designs, and business processes disclosed by such party. However,
Confidential Information (other than Your Data) shall not include any
information that (a) is or becomes generally known to the public without breach
of any obligation owed to the Disclosing Party, (b) was known to the Receiving
Party prior to its disclosure by the Disclosing Party without breach of any
obligation owed to the Disclosing Party, (c) is received from a third party
without breach of any obligation owed to the Disclosing Party, or (d) was
independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in
writing by the Disclosing Party, (a) the Receiving Party shall use the same
degree of care that it uses to protect the confidentiality of its own
confidential information of like kind (but in no event less than reasonable
care) not to disclose or use any Confidential Information of the Disclosing
Party for any purpose outside the scope of this Agreement and (b) the Receiving
Party shall limit access to Confidential Information of the Disclosing Party to
those of its employees, contractors, and agents who need such access for
purposes consistent with this Agreement and who have signed confidentiality
agreements with the Receiving Party containing protections no less stringent
than those herein.
7.3. Protection of Your Data. Without limiting the above, We shall not (a)
modify Your Data, (b) disclose Your Data except as compelled by law in
accordance with Section 7.4 (Compelled Disclosure) or as expressly permitted in
writing by You, or (c) access Your Data except to provide the Services or
prevent or address service or technical problems, or at Your request in
connection with support matters.
7.4. Compelled Disclosure. The Receiving Party may disclose Confidential
Information of the Disclosing Party if it is compelled by law to do so,
provided the Receiving Party gives the Disclosing Party 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. If the Receiving Party is compelled by law to disclose
the Disclosing Party’s Confidential Information as part of a civil proceeding
to which the Disclosing Party is a party, and the Disclosing Party is not
contesting the disclosure, the Disclosing Party will reimburse the Receiving
Party for its reasonable cost of compiling and providing secure access to such
Confidential Information.
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We warrant that (a) the Services shall perform materially
in accordance with the User Guide and (b) subject to Section 8.4 (Third-Party
Applications), the functionality of the Services will not be materially
decreased during a Subscription Term. For any breach of either such warranty,
Your exclusive remedy shall be as provided in Section 11.3 (Termination for
Cause) and Section 11.4 (Refund or Payment upon Termination) below.
8.2. Mutual Warranties. Each party represents and warrants that (a) it has the
legal power to enter into this Agreement and (b) it will not transmit to the
other party any Malicious Code (except for Malicious Code previously
transmitted to the warranting party by the other party).
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY
WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND
EACH PARTY AND THEIR LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, UNINTERRUPTED OR ERROR-FREE SERVICE, ERROR CORRECTION,
AVAILABILITY, ACCCURACY, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM
STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USASE OF TRADE, TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.4. Third-Party Applications. The Services have been built on Salesforce.com’s
cloud-computing platform-as-a-service known as “Force.com” and run entirely on
the Force.com platform. The Services are designed to work with Salesforce.com and
with certain other Third-Party Applications made available through
Salesforce.com and the Force.com platform. Your use of Third-Party Applications
is governed entirely by the terms of Your agreement with Salesforce.com or with
the relevant third party. Nothing in this Agreement creates any rights or
obligations on Our part with respect to such Third-Party Applications nor
should this Agreement be construed as creating any rights or obligations on the
part of Salesforce.com or on the part of any third party providing Third-Party
Applications with respect to Our Services.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We shall defend You against any claim, demand,
suit, or proceeding (“Claim”) made or brought against You by a third
party alleging that the use of the Purchased Services as permitted hereunder
infringes or misappropriates the intellectual property rights of that third
party, and shall indemnify You for any damages finally awarded against You, or
those sums agreed to in a monetary settlement of such action, and for
reasonable attorney’s fees incurred by You, in connection with any such Claim;
provided, that You (a) promptly give Us written notice of the Claim; (b) give
Us sole control of the defense and settlement of the Claim (provided that We
may not settle any Claim unless the settlement unconditionally releases You of
all liability); and (c) provide to Us all reasonable assistance, at Our
expense. If the Services become, or in Our reasonable opinion are likely to
become, the subject of a Claim, We may, at Our option and expense, either (i)
procure for You the right to continue using the allegedly infringing materials;
(ii) replace or modify the same so that they become non-infringing; or (iii)
terminate Your right to use all or part of the Services and give You a refund
or credit for the fees You actually paid to Us for the prior twelve-month
period for the relevant Services as of the date of termination. Notwithstanding
the foregoing, We will have no obligation of defense or indemnification or
otherwise with respect to any Claim based upon (w) any use of the Services not
in accordance with this Agreement and the User Guide; (x) a Third-Party
Application, (y) any modification of the Services made by or content provided
by any person other than Us; (z) any continuation of the allegedly infringing
activity after being notified thereof and provided modifications, replacements,
or other remedies that would have avoided the alleged infringement.
9.2. Indemnification by You. You shall defend Us against any Claim made or
brought against Us by a third party alleging that Your Data, or Your use of the
Services in violation of this Agreement, infringes or misappropriates the
intellectual property rights of that third party or violates applicable law,
and shall indemnify Us for any damages finally awarded against Us, or those
sums agreed to in a monetary settlement of such action, and for reasonable
attorney’s fees incurred by Us, in connection with any such Claim; provided,
that We (a) promptly give You written notice of the Claim; (b) give You sole
control of the defense and settlement of the Claim (provided that You may not
settle any Claim unless the settlement unconditionally release Us of all
liability); and (c) provide to You all reasonable assistance, at Your
expense.
9.3. Exclusive Remedy. This Section 9 (Mutual Indemnification) states the
indemnifying party’s sole liability to, and the indemnified party’s exclusive
remedy against, the other party for any type of Claim described in this Section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS
UNDER SECTION 9 (MUTUAL INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY’S
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT
PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF
$20,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE
INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION
5 (FEES AND PAYMENT FOR PURCHASED SERVICES).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER
PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE
DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF
LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED
BY APPLICABLE LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You accept it and
continues until all subscriptions granted in accordance with this Agreement
have expired or been terminated. If You elect to use the Services for a free
trial period and do not purchase a subscription before the end of that period,
this Agreement will terminate at the end of the free trial period.
11.2. Term of Purchased Subscriptions. Subscriptions purchased by You commence
on the start date specified in the applicable Order Form and continue for the
Subscription Term specified therein. Except as otherwise specified in the
applicable Order Form, all subscriptions shall automatically renew for
additional periods equal to the expiring Subscription Term, unless either party
gives the other notice of non-renewal at least 30 days before the end of the
relevant Subscription Term. The per-subscription pricing during any such
renewal term shall automatically renew at the then-current list price or renewal
price specified in the initial quote or invoice.
11.3. Termination for Cause. A party may terminate this Agreement for cause:
(a) upon 30 days written notice to the other party of a material breach if such
breach remains uncured at the expiration of such period or (b) immediately upon
written notice 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. In addition, We may
terminate this Agreement should the agreement between Us and Salesforce.com,
which permits the provision of the Services through the Force.com platform,
terminate or expire for any reason.
11.4. Refund or Payment upon Termination. Upon any termination for cause by
You, We shall refund You any prepaid fees covering the remainder of the term of
all subscriptions after the effective date of termination. Upon any termination
for cause by Us, You shall pay any unpaid fees covering the remainder of the
term of all Order Forms after the effective date of termination. In no event
shall any termination relieve You of the obligation to pay any fees payable to
Us for the period prior to the effective date of termination.
11.5. Surviving Provisions. Section 5 (Fees and Payment for Purchased
Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9
(Mutual Indemnification), 10 (Limitation of Liability), 11 (Term and
Termination), and 12 (General Provisions) shall survive any termination or
expiration of this Agreement.
12. GENERAL PROVISIONS
12.1. Notices. Except as otherwise specified in this Agreement, all notices,
permissions, and approvals hereunder shall be in writing and shall be deemed to
have been given upon: (a) personal delivery, (b) the second business day after
mailing, (c) the second business day after sending by confirmed facsimile, or
(d) the first business day after sending by email (provided email shall not be
sufficient for notices of termination or an indemnification claim). Notices to
You shall be addressed to the system administrator designated by You for Your
relevant Services account, and in the case of billing-related notices, to the
relevant billing contact designated by You.
12.2. Governing Law and Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed exclusively by the substantive and procedural laws of the
State of California, without regard to its conflicts of laws rules. The state
and federal courts located in Santa Clara County, California shall have exclusive
jurisdiction to adjudicate any dispute arising out of or relating to this
Agreement. Each party hereby consents to the exclusive jurisdiction and venue
of such courts. The Uniform Computer Information Transactions Act does not
apply to this Agreement or to orders placed under it. Each party also hereby
waives any right to jury trial in connection with any action or litigation in
any way arising out of or related to this Agreement.
12.3. Export Compliance. Each party shall comply with the export laws and
regulations of the United States and other applicable jurisdictions in
providing and using the Services. Without limiting the foregoing, (a) each
party represents that it is not named on any U.S. government list of persons or
entities prohibited from receiving exports and (b) You shall not permit Users
to access or use the Services in violation of any U.S. export embargo,
prohibition, or restriction.
12.4. 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.
12.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to
this Agreement.
12.6. 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.
12.7. 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.
12.8. 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 all Order Forms), without consent of the other party, to its
Affiliate or in connection with a merger, acquisition, corporate
reorganization, or sale of all or substantially all of its assets not involving
a direct competitor of the other party. A party’s sole remedy for any purported
assignment by the other party in breach of this paragraph shall be, at the
non-assigning party’s election, termination of this Agreement upon written
notice to the assigning party. In the event of such a termination, We shall
refund to You any prepaid fees covering the remainder of the term of all
subscriptions after the effective date of termination. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of the parties
and their respective successors and permitted assigns.
12.9. Entire Agreement. This Agreement, including all exhibits and addenda
hereto and all Order Forms, 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 either signed or accepted electronically by the party
against whom the modification, amendment, or waiver is to be asserted. However,
to the extent of any conflict or inconsistency between the provisions in the
body of this Agreement and any exhibit or addendum hereto or any Order Form,
the terms of such exhibit, addendum, or Order Form shall prevail.
Notwithstanding any language to the contrary therein, no terms or conditions
stated in Your purchase order or other order documentation (excluding Order
Forms) shall be incorporated into or form any part of this Agreement, and all
such terms or conditions shall be null and void.
12.10 Customer Attribution. You agree that We may use and display Your name and
logo: (a) on Our customer list; and (b) with Your prior written approval, not
to be unreasonably withheld or delayed, in other marketing materials of Us.