MASTER SUBSCRIPTION AGREEMENT
Terms and Conditions
Master Subscription Agreement – Terms & Conditions
THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S LICENSE AND ACCESS TO, AND USE OF, COMPANY’S SUBSCRIPTION SERVICES. BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER ACCEPTS AND AGREES TO ALL OF THE TERMS AND CONDITIONS HEREOF.
1. Definitions. In addition to the capitalized terms defined upon first use in this Agreement, certain capitalized terms are defined below.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly is controlled by or under common control with such Person.
“Agreement” is defined in Section 2 of this Agreement.
“Authorized User” means an individual employee, customer or Consultant of Customer or of any Affiliate of Customer, who is authorized by Customer to use the Subscription Services for the Permitted Purpose.
“Thrive360 Platform” means Company’s online platform for its applications, digital content and other add-on offerings.
“Company” means any such contracting Thrive360 entity as may be specified in the Order Form.
“Company IP” means the Company Software, the Documentation and all other software (including both source code and object code, as applicable), documentation, templates, designs (including screen and report designs), data, materials, technology and works created, utilized and/or provided by or on behalf of Company in connection with the SaaS Services or the performance of this Agreement, and all Intellectual Property Rights related to any of the foregoing.
“Company Software” means all software forming part of or used by Company to deliver SaaS Services, including any upgrades, improvements, enhancements or derivatives thereof.
“Confidential Information” means any information, including information, technical data or know-how relating to discoveries, ideas, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, systems, models, data, source code, object code, documentation, diagrams, flow charts, research, development, business plans or opportunities, products, projects or products under consideration, procedures, and information related to finances, costs, prices, suppliers, vendors, customers and employees, which is disclosed by the disclosing Party in connection with this Agreement whether before, on or after the Effective Date, directly or indirectly, in writing, orally or by drawings or inspection of equipment or software, to the receiving Party or any of its employees or designated agents. Confidential Information includes the terms of this Agreement. .
“Consultant” means a consultant, contractor or agent engaged by Customer or any Affiliate of Customer to provide services to and for the sole benefit of Customer or such Affiliate.
“Customer” means the Person entering into this Agreement with Company, as identified in the Order Form.
“Customer Data” means any Confidential Information of Customer or its Affiliates that is input and stored in any Company system pursuant to Customer’s use of the Subscription Services.
“Documentation” means the online user guides, documentation, and help and training materials for the SaaS Services as made available by Company from time to time.
“Effective Date” means the effective date of the Order Form, as specified therein.
“Intellectual Property Rights” means all rights throughout the world in any and all of the following: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (d) trade secrets, know-how and other proprietary information of a like kind; (e) waivable or assignable rights of publicity, waivable or assignable moral rights; and (f) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable Law.
“Order Form” means an order form executed by the Parties with respect to SaaS Services that incorporates by reference this Agreement.
“Party” means Customer or Company and “Parties” means, collectively, both parties to this Agreement.
“Permitted Purpose” means the use, in accordance with the Documentation and the terms of this Agreement (including any applicable usage limits set forth in the Order Form) of the Subscription Services solely for Customer’s own internal business purposes.
“Person” means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture or other form of business or legal entity.
“SaaS Services” means Company’s generally commercially available hosted software-as-a-service offerings, the specific features and functionality of which are described in the applicable Documentation. For the avoidance of doubt, the term “SaaS Services” does not include Third Party Applications.
“Subscription Period” means the initial period for which Customer has contracted to subscribe to the Subscription Services as specified in the Order Form, along with each renewal period of Customer’s subscription pursuant to Section 10.2.
“Subscription Services” means the specific SaaS Services to which Customer has purchased a subscription pursuant to an Order Form.
2. Scope of Agreement.
The capitalized term “Agreement” when used herein refers to the terms of an Order Form (insofar as such terms pertain to SaaS Services), together with this Agreement and any Annexes or other documents specifically incorporated herein by reference. If the Parties enter into more than one Order Form, then each additional Order Form shall be deemed to form a new and separate Agreement between the Parties and separately from each other Agreement or other agreement between the Parties), unless the additional Order Form specifically states that it is supplementing and amending an existing Order Form.
3. Provision and Use of Subscription Services.
3.1 During the applicable Subscription Period, Company shall make available the Subscription Services to Customer on the terms and subject to the conditions set forth in this Agreement.
3.2 Company is responsible for the deployment, operation, management and hosting of the Subscription Services, including the provisioning and maintenance of all server-side hardware, software and telecommunications capacity. Customer is responsible for all hardware, software, connectivity and related infrastructure required for Customer and Authorized Users to access and use the Subscription Services.
3.3 Company shall use commercially reasonable efforts to ensure that the Subscription Services are available for use by Authorized Users in accordance with Thrive 360’s User Agreement and subject to the remedies specified therein.
3.4 Customer is solely responsible for the security and proper creation, use and termination of all Authorized User IDs, passwords and other security devices used in connection with the Subscription Services and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to unauthorized Persons. Customer shall immediately inform Company if there is any reason to believe that a user ID, password, or any other security device has or is likely to become known to any Person not authorized to use it, or is being or is likely to be used in an unauthorized way. Company reserves the right (in its sole discretion) to require Customer to change any or all of the user IDs, passwords or other security devices used by Customer in connection with the Subscription Services, and Customer shall promptly comply with any such requirement. If the Order Form specifies a maximum number of Authorized Users for Customer’s subscriptions, then each Authorized User must be a unique individual and Customer shall be responsible for ensuring that the maximum number is not exceeded. An Authorized User license may be permanently transferred from a former Authorized User (such as an individual whose employment by Customer terminates) to a replacement Authorized User, but two or more individuals may not share a single Authorized User login.
3.5 Customer is solely responsible for its relationships with all Authorized Users and Affiliates of Customer, for their use of the Subscription Services, and for ensuring that they comply with all the terms and conditions of this Agreement. Any violation of the terms and/or conditions of this Agreement by an Authorized User or Affiliate of Customer shall be deemed to be a violation by Customer of such terms and
3.6 Company shall maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data.
4. Rights and Limitations of Use.
4.1 Subject to the terms and conditions of this Agreement (including Customer’s payment obligations hereunder), Company grants to Customer a limited, non-exclusive, non-transferable right and license during the applicable Subscription Period to access and use, and permit Authorized Users to access and use, the Subscription Services and Documentation solely for the Permitted Purpose.
4.2 Except for the rights granted in Section 4.1, no other rights in or to any SaaS Services or Company IP, express or implied, are granted to Customer. .
5. Support and Maintenance.
Customer acknowledges that the SaaS Services were not designed or produced to Customer’s individual requirements and that Customer is solely responsible for confirming that the Subscription Services meet such requirements. Customer further acknowledges that the SaaS Services are based on a standardized service platform made available by Company to a variety of customers. Company will make available to Customer as part of the Subscription Services the error corrections and improvements that Company makes available to its customers generally as part of their subscription to the Subscription Services, but specifically excluding any new products, offerings, applications or add-ons for which Company charges a separate fee, unless Customer separately purchases a license or subscription thereto. Company reserves the right to make changes to the Subscription Services. Unless otherwise agreed by the Parties in a separate Order Form, after each update to the Subscription Services, Customer will not be able to use the previous version and, even in cases where Company may be able to accommodate and has expressly authorized Customer’s continued use of a previous version, any such previous version is provided solely on an “as is” basis and none of the covenants, obligations, representations or warranties of Company shall apply to such previous version.
6. Fees and Payment.
6.1 Customer shall pay all fees and charges as specified in each Order Form. Except as otherwise set forth in this Agreement, (i) fees are based on the Subscription Services ordered and not actual usage of such services by Customer or its Authorized Users; (ii) all payment obligations under an Order Form are non-cancelable and amounts paid are non-refundable and (iii) ordered quantities including those related to Authorized Users number cannot be decreased during the relevant Subscription Period. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.
6.2 If any invoiced amount is not received by Company by the due date, then without limiting Company’s rights or remedies, (a) Company may charge Customer interest at the rate of 1.4% per month (or the highest rate allowable by law, if less) for any past due amounts, from the date payment was due until the date paid, other than with respect to any amount disputed by Customer in good faith (where Customer is cooperating diligently to resolve the dispute) and/or (b) Company may condition future subscription renewals and invoices on payment terms shorter than those specified in Section 6.1. Company will give Customer at least 7 (seven) days’ prior notice that Customer’s account is overdue before suspending the Subscription Services to Customer. Customer shall bear any costs (including attorneys’ fees and costs) incurred by Company in collecting any amounts due hereunder.
6.3 Company fees do not include and Customer shall pay any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes and import duties, assessable by any jurisdiction whatsoever (other than corporate income taxes payable by Company) due as a result of any amounts paid by Customer to Company under any Order Form.
7.1 Each Party represents and warrants to the other Party that: (a) it has the full power and authority to enter into this Agreement and perform its obligations under this Agreement; and (b) the execution, delivery and performance of this Agreement by it does not violate, conflict with or constitute a default under any agreement or instrument to which it is a party or by which it is bound, or any applicable law, regulation or order of any court or other tribunal, except where such violation, conflict or default would not materially impair such Party’s performance of its obligations or the other Party’s enjoyment of its rights under this Agreement.
7.2 Company further warrants to Customer that: (a) the Subscription Services will function substantially in accordance with the applicable Documentation; and (b) it will use a generally commercially available virus detection or scanning program to test the Subscription Services for the presence of viruses. In the event of any nonconformance with any of the warranties specified in this Section 7.2, Customer will promptly (and in no event later than thirty (30) days after the non-conforming services were provided) notify Company of such nonconformance and Company will, following receipt of such notice from Customer, use commercially reasonable efforts to make available to Customer a conforming version of the Subscription Service. If Company fails to do so within thirty (30) days, and such nonconformance has the effect of materially diminishing the functionality and value of the Subscription Services as a whole, then Customer shall have the right to terminate this Agreement upon notice and recover the subscription fees paid to Company, pursuant to Section 10.7(d); provided, however, that such termination shall not be permitted if, within such thirty (30) day period, Company has provided Customer with reasonable assurances that such nonconformance will be remedied within a reasonable period of time. The foregoing sets forth the exclusive remedies of Customer, and the sole liability of Company, in the event of any nonconformance with any of the warranties set forth in this Section 7.2 or otherwise with respect to any errors, service interruptions or other problems with the Subscription Services.
7.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY IS PROVIDING THE SUBSCRIPTION SERVICES AND SUPPORT SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND COMPANY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBSCRIPTION SERVICES AND SUPPORT SERVICES OR THEIR PERFORMANCE HEREUNDER, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, COMPANY DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL MEET CUSTOMER’S EXPECTATIONS OR BE SECURE, ACCURATE, ERROR-FREE, OR OPERATE ON AN UNINTERRUPTED BASIS OR IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE OR SYSTEM. WITHOUT LIMITING THE FOREGOING, COMPANY WILL NOT BE LIABLE FOR ANY PROBLEMS WITH THE SUBSCRIPTION SERVICES OR SUPPORT SERVICES ATTRIBUTABLE TO THE INTERNET, FORCE MAJEURE OR CUSTOMER’S OR ANY AUTHORIZED USER’S NETWORK OR ABILITY TO ACCESS THE INTERNET.
8.1 Company shall indemnify, defend and hold harmless Customer and its employees and agents from and against any loss, cost, damage or expense (but specifically excluding any indemnified Person’s attorneys’ fees and costs) in respect of any claim, demand, action, suit or other judicial proceeding asserted, brought or threatened by a third Person (each a “Claim”) alleging that the Subscription Services as provided by Company hereunder infringe any third Person’s rights in any copyright, trademark or United States or European Union patent, except to the extent the Claim (a) relates to Customer Data or other materials provided by or on behalf of Customer or its Authorized Users; (b) relates to the actual or alleged infringement of inventions, technologies or methods in widespread unlicensed use by third Persons at the time the Subscription Services have been used by Customer; or (c) is otherwise subject to Customer’s indemnification obligations under Section 8.2. In the event of any actual Claim of infringement or if Company has reason to believe that such a Claim may be brought, Company may at its option and sole expense either (a) obtain the rights necessary to extinguish or avoid the infringement, or (b) make any modifications to the Subscription Services that are recommended by Company’s counsel to avoid infringement of third Person rights,
provided that if any such modification materially diminishes the functionality and value of the Subscription Services as a whole, Customer may within ninety (90) days following Company’s implementation of such modification terminate this Agreement by notice to Company and recover a refund of prepaid fees pursuant to Section 10.7(d) or (c) terminate Customer’s subscriptions for that Subscription Services upon 30 days’ written notice and refund of prepaid fees pursuant to Section 10.7(d). This Section 8.1 states Customer’s sole remedy and Company’s entire liability for any losses and damages of any nature arising out of or relating to any actual or alleged infringement of any copyright, patent, trade secret or other Intellectual Property Rights of any third Person.
8.2 Customer shall indemnify, defend and hold harmless Company and its Affiliates and their respective employees and agents from and against any loss, cost, damage or expense (but specifically excluding attorneys’ fees and costs) in respect of any Claim that relates to (a) Customer Data or any other content or materials provided by Customer or its Affiliates or Authorized Users or (b) the use by Customer or its Affiliates or Authorized Users of the Subscription Services or Company IP in breach of this Agreement or in violation of applicable law or third party rights.
8.3 As a condition to the obligations of the indemnifying party under either of Sections 8.1 or 8.2 above, the indemnified Person shall: (a) promptly notify the indemnifying Party of any Claim for which indemnity will be sought; provided that no delay in providing such notice shall relieve the indemnifying Party of any liability or obligations hereunder except to the extent the indemnifying Party has been prejudiced by such delay; (b) permit the indemnifying Party to assume control of the defense and settlement of such Claim with counsel of its choosing; and (c) provide cooperation reasonably requested by the indemnifying Party in investigating and defending such Claim, at the indemnifying Party’s expense (provided that the indemnified Person shall not be entitled to compensation for time spent providing such cooperation). The indemnified Person shall have the right to participate in (but not control) the defense of any such Claim, at its sole cost and expense, using counsel of its choosing.
9. LIMITATIONS OF LIABILITY.
9.1 EXCEPT FOR LIABILITY ARISING FROM A WILLFUL OR INTENTIONAL BREACH OF SECTION 11 (CONFIDENTIALITY) OR FROM A BREACH OF SECTION 12 (PROPRIETARY RIGHTS), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF DATA, LOSS OF BUSINESS OR PROFITS, OR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
9.2 COMPANY’S AGGREGATE LIABILITY TO CUSTOMER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM OCCURRED.
9.3 THE LIMITATIONS OF LIABILITY AND DAMAGE EXCLUSIONS CONTAINED IN THIS AGREEMENT WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS (OR LACK THEREOF) OF ANY REMEDIES PROVIDED HEREIN. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF THE SUBSCRIPTION SERVICES, AND THEY REPRESENT AN AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS AGREEMENT.
9.4 EACH PARTY SHALL TAKE, AND CAUSE ITS AFFILIATES TO TAKE, ALL REASONABLE STEPS TO MITIGATE ANY DAMAGES UPON BECOMING AWARE OF ANY EVENT OR CIRCUMSTANCE THAT WOULD BE REASONABLY EXPECTED TO, OR DOES, GIVE RISE TO AN INDEMNIFICATION CLAIM OR OTHER DAMAGES CLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
9.5 ANY ACTION BY EITHER PARTY RELATED TO AN ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT BY THE OTHER PARTY, OTHER THAN A WILLFUL OR INTENTIONAL BREACH OF SECTION 11 (CONFIDENTIALITY) OR A BREACH OF SECTION 12 (PROPRIETARY RIGHTS), MUST BE COMMENCED WITHIN TWO YEARS AFTER THE DATE ON WHICH THE BREACH IS DISCOVERED. ANY ACTION NOT BROUGHT WITHIN THAT TWO-YEAR PERIOD SHALL BE BARRED, WITHOUT REGARD TO ANY LONGER LIMITATIONS PERIOD SET FORTH IN ANY APPLICABLE LAW OR STATUTE.
10. Subscription Period, Renewals, Termination and Suspension.
10.1 Company makes the SaaS Services available on a subscription basis, and Customer is purchasing a subscription to access and use the Subscription Services upon the terms and conditions set forth in this Agreement, for the Subscription Period specified in the Order Form. Neither Party may terminate a Subscription Service for convenience prior than the end of its Subscription Period.
10.2 This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated.
10.3 Either Party may terminate this Agreement by notice if the other Party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from the non-defaulting Party. Any such termination shall be without limitation of any other right or remedy available to the terminating Party.
10.4 Upon ten (10) days’ notice to Customer, Company may suspend the Subscription Services in whole or in part if Customer fails to make when due any payment required under this Agreement or under any other agreement entered into by the Parties. Company may also suspend the Subscription Services in whole or in part if Customer otherwise breaches any term of this Agreement or any other agreement entered into by the Parties and fails to cure such breach within thirty (30) days after receipt of notice of the breach from Company, until such time as the breach is cured. Notwithstanding the foregoing, Company may immediately suspend the Subscription Services, with or without prior notice to Customer, in order to avoid or mitigate irreparable harm to Company. Any suspension hereunder shall be without limitation of any other right or remedy available to Company.
10.5 Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party has a receiver or similar party appointed for all or substantially all of its property, is declared insolvent by a court of competent jurisdiction, ceases to do business in the ordinary course, files a petition in bankruptcy or has a petition filed against it in bankruptcy, becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within ninety (90) days, or makes an assignment for the benefit of its creditors.
10.6 Company may terminate this Agreement immediately upon notice to Customer for breach of Section 15.
10.7 Upon the termination or expiration of this Agreement for any reason:
(a) Company will terminate access to the Subscription Services, and all rights and licenses granted by Company pursuant to this Agreement shall terminate;
(b) Customer shall pay all amounts that have accrued and are owed hereunder within ten (10) days following any termination or expiration of this Agreement;
(c) If this Agreement is validly terminated by Customer pursuant to either of Sections 5, 8.1 or 10.3 and Customer is in full compliance with all material terms and conditions of this Agreement, Company shall within ten (10) days following the effective date of such termination refund to Customer all subscription fees previously paid by Customer for the Subscription Services with respect to the then-remaining portion of any prepaid but unused Subscription Period; and
(d) If requested by a Party, the other Party shall promptly destroy or return to the requesting Party, as directed, all of the requesting Party’s Confidential Information, and other materials of the requesting Party in such other Party’s possession or under its control. Notwithstanding the foregoing, each Party shall be entitled to retain any records to the extent it has been advised in writing by counsel that such retention is required to comply with applicable Law or regulation.
Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement shall survive any such termination or expiration.
11.1 Each Party that receives Confidential Information of the other Party agrees that, unless the disclosing Party gives its prior written authorization, it shall not: (a) use such Confidential Information other than for the purposes of this Agreement; or (b)
disclose any such Confidential Information to any third Person except those directors, officers, employees, Consultants and agents of the receiving Party who are required to have such Confidential Information in order to carry out the purposes of this Agreement and who have signed a non-disclosure agreement or are otherwise bound by confidentiality obligations in substance similar to the provisions hereof. The receiving Party shall prevent the unauthorized use, disclosure, dissemination or publication of such Confidential Information using at least the same degree of care that the receiving Party uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care.
11.2 The obligations of the Parties under Section 11.1 shall not apply to the extent of any disclosure required pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving Party has provided prompt notice and assistance to the disclosing Party prior to such disclosure, so that such Party may seek a protective order or other appropriate remedy to protect against disclosure.
11.3 Any breach of the confidentiality obligations set forth in this Section 11 would constitute a material breach of this Agreement, which the breaching Party acknowledges would cause irreparable harm to the non- breaching Party, leaving it without an adequate remedy at Law.
11.4 This Section 11 will remain in effect during the term of this Agreement and for a period of five (5) years following termination or expiration of this Agreement for any reason, except with respect to any Confidential Information of Company contained in or constituting Company Software, for which this Section 11 will remain in effect indefinitely.
11.5 In the event that the provisions of this Section 11 are inconsistent with the provisions of any applicable non-disclosure (or comparable) agreement separately executed by the Parties, then the terms of this Section 11 shall govern with respect to Confidential Information disclosed in connection with the subject matter of this Agreement.
12. Proprietary Rights.
12.1 As between the Parties, all Intellectual Property Rights in and to the Company IP are and shall remain the sole property of Company and its Affiliates and their respective licensors, as applicable, and Customer shall acquire no right of ownership or use with respect to any Company IP except for the limited license right specified in Section 4. Without limiting the foregoing, Customer acknowledges that the Company Software and SaaS Services and the inventions, know-how and methodology embodied therein are proprietary to, and are the valuable trade secrets of, Company and its Affiliates and licensors, as applicable, and that the Company Software constitutes Confidential Information of Company.
13. Force Majeure.
If either Party is unable to perform any obligation (excluding any payment obligation) under this Agreement because of any matter beyond that Party’s reasonable control, such as any act of God, lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of either Party), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks, issues caused by Third Party Application or other events beyond a Party’s reasonable control (each, a “Force Majeure Event”), that Party will have no liability (including any obligation to issue refunds or credits) to the other for such failure to perform; provided, however, that such Party shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event.
Customer hereby grants Company the right to issue a press release announcing that Customer has become a customer of Company, and to reproduce and display Customer’s name, logo and trademarks on Company’s website and in brochures, social media and other marketing materials for the purpose of identifying Company’s relationship with Customer. Except as provided in the preceding sentence, all media releases, public announcements and public disclosures by either Party relating to this Agreement or its subject matter shall require the mutual approval of the Parties.
15. Additional Customer Representations and Covenants.
Customer shall, and shall ensure that its directors, officers, employees, agents and Affiliates, at all times (a) comply with all Laws applicable to this Agreement, Customer’s performance of its obligations hereunder and use of the Subscription Services and (b) not engage in any activity involving the Subscription Services that violates any law or may cause Company to violate any Law.
Customer has not received or been offered any unlawful bribe, kickback, payment, gift or thing of value from any of Company, its subsidiaries or its or their directors, officers, employees or agents in connection with this Agreement.
16. General Provisions.
16.1 Company shall have the right to modify any of the terms or conditions of this Agreement from time to time, provided that no such modification shall take effect until the start of the next Subscription Period following Company’s notice to Customer of such modification sent no later than sixty (60) days prior to the start of such Subscription Period. Customer’s failure to object to such modification and/or terminate this Agreement pursuant to Section 10.1 within thirty (30) days after its receipt of such modification notice shall constitute Customer’s acceptance of such modification.
16.2 This Agreement shall be governed by, and construed in accordance with, the Law of the State of Texas, without regard to its choice of law principles. Any litigation between the Parties concerning this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts in Travis County, Texas. Nothing contained in this Section 16.2 shall prevent either Party from seeking injunctive relief from any court of competent jurisdiction.
16.3 Neither Party shall assign or otherwise transfer this Agreement, or delegate any duty or assign or otherwise transfer any right hereunder, including by operation of law, without the prior written consent of the other Party. Notwithstanding the foregoing, Company may freely assign or otherwise transfer this Agreement without Customer’s consent to any Affiliate or in connection with a merger, corporate reorganization or sale of all or substantially all of Company’s business or assets to which this Agreement relates. Any purported assignment or transfer in contravention of this Section 16.3 shall be null and void ab initio. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.
16.4 Unless otherwise specified in this Agreement, any notice required or permitted to be sent under this Agreement shall be sent, in writing, by certified mail (return receipt requested), overnight courier or personal delivery, to Company or to Customer at the addresses for notices set forth in the Order Form or as changed from time to time by notice. Such notices shall be effective when received.
16.5 If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the Parties underlying the invalid, illegal or unenforceable provision(s).
16.6 The headings and other captions in this Agreement are for convenience only and shall not be used in interpreting, construing, or enforcing any of the terms of this Agreement.
16.7 This Agreement does not create or evidence a partnership, joint venture or any other fiduciary relationship between the Parties. The Parties are independent, and each has sole authority and control of the manner of, and is responsible for, its performance of this Agreement. Neither Party may create or incur any liability or obligation for or on behalf of the other Party, except as described in this Agreement.
16.8 This Agreement constitutes the entire agreement between Parties with regard to the subject matter hereof and supersedes any and all previous communications, whether oral or written, as well as any previous memoranda of understanding and side letters between the Parties with respect to such subject matter. In the event of any conflict, discrepancy or inconsistency between an Order Form and this Agreement, the terms of the Order Form shall govern. Neither the course of conduct between Parties nor trade usage shall modify or alter this Agreement.