This MASTER SUBSCRIPTION AGREEMENT (the “AGREEMENT”) is entered by and between THINKLP, INC. (“ThinkLP”), with offices at 228 Park Ave S, PMB 944850, New York, New York 10003-1502 US, and you (“Customer”). In consideration of the mutual promises contained herein, ThinkLP and Customer (each a “Party” and together, the “Parties”) hereby agree as follows:

 

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.
“AppExchange” means the online directory of applications that might interoperate with the Subscription Services, located at http://www.salesforce.com/appexchange or at any successor websites.
“Customer Data” means all electronic data or information submitted by Customer to the Subscription Services.
“Implementation Services” means the professional services as identified in an Order to be provided by ThinkLP to launch Customer’s Subscription Services (“Implementation”).
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between the Parties from time to time. All Orders referencing this Agreement are governed by this Agreement.
“Professional Services” means professional services provided by ThinkLP following Implementation pursuant to an Order which are ancillary to the Subscription Services, which may include consulting, training, support, and other similar services
“Services” means Subscription Services, Implementation Services, and Professional Services.
“SLA” means the Service Level Agreement attached hereto as Schedule A.
“Subscription Services” means the online, Web-based subscription applications and platform provided by ThinkLP and purchased by Customer or its Affiliates under an Order via http://www.thinklp.com and/or other designated websites, including associated offline components but excluding Third Party Applications.
“Subscription Term” means the time period identified in the Order during which ThinkLP will provide the Subscription Services to Customer and its Users.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications, including but not limited to those listed on the AppExchange.
“Users” mean Customer’s employees, representatives, consultants, contractors, or agents who are authorized by Customer to use the Services, for whom Subscription Services have been purchased, and who have been supplied user identifications and passwords by Customer (or by ThinkLP at Customer’s request).
“User Subscriptions” means the license to the Subscription Services granted to Users.

 

2.SERVICES

2.1 Provision of Subscription Services.  ThinkLP shall make the Subscription Services available to Customer and/or its Affiliates pursuant to this Agreement and the relevant Orders during a Subscription Term. Customer agrees that Customer’s 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 ThinkLP regarding future functionality or features.

2.2 User Subscriptions. Unless otherwise specified in the applicable Order, (i) Subscription Services are purchased as User Subscriptions and may only be accessed by the number of licensed users specified in the relevant Order , (ii) additional User Subscriptions may be added during the Subscription Term at the same pricing as that for the pre-existing User Subscriptions, prorated for the remainder of the Subscription Term in effect at the time the additional User Subscriptions are added, and (iii) the added User Subscriptions shall terminate on the same date as the pre-existing User 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 on-going use of the Subscription Services.

2.3 Implementation Services and Professional Services.

(a) Timing. ThinkLP shall use commercially reasonable efforts to perform Implementation Services and Professional Services in accordance with the work schedule, if any, in the applicable Order; provided however that all scheduled dates are estimates only.

(b) Changes.

• Customer may request a change order for changes in the scope, schedule, and/or deliverables, if any, in relation to the Implementation Services and/or Professional Services by submitting a request to ThinkLP in writing (by email is sufficient). ThinkLP shall not proceed with any change to its obligations under a Change Order request unless documented in a change order executed by both parties.
• After ThinkLP receives the change order, the parties shall meet within 14 days of order receipt date and, acting reasonably to confirm a feasible timeline and any additional costs to the Fees that may be levied in order for ThinkLP to execute on the Change Order.
• A change order shall be deemed acceptable by ThinkLP upon ThinkLP’s confirmation of acceptance in writing (via email is sufficient) to the change order request.
• To request an additional change to an accepted change order, Customer shall submit a new change order.

(c) Customer Responsibilities. Customer will cooperate reasonably and in good faith with ThinkLP in ThinkLP’s performance of Implementation Services and Professional Services by allocating sufficient resources and timely performing any tasks reasonably necessary to enable ThinkLP to perform its obligations under each Order, including without limitation, attending meetings, providing reviews and approvals, responding to ThinkLP’s inquiries, or responding to ThinkLP’s requests for information, data or feedback as reasonably required.
(d) Delays. Any delays in the performance of Implementation Services or Professional Services caused by Customer may result in additional applicable charges for resource time.
(e) Acceptance. Upon completion of Implementation Services and/or Professional Services under an Order, ThinkLP will advise Customer (“Delivery Notice”) and, at Customer’s request, demonstrate its functionality. The Implementation Services and/or Professional Services shall be deemed accepted by Customer if Customer does not provide ThinkLP with detailed written notice of non-conformity within 5 business days of Customer’s receipt of the Delivery Notice.

 

3.USE OF THE SERVICES

3.1 ThinkLP Responsibilities. ThinkLP shall:
(a) use commercially reasonable efforts to make the Subscription Services available in accordance with the service level agreement (SLA);
(b) provide ThinkLP standard support for the Subscription Services to Customer in accordance with the SLA at no additional charge, and/or upgraded support if purchased; and
(c) provide the Subscription Services in accordance with laws and government regulations applicable to ThinkLP’s provision of its subscription services to its customers generally, and subject to Customer’s and Users’ use of the Subscription Services in accordance with the Agreement and an applicable Order.

3.2 Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify ThinkLP promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with any user documentation and applicable laws and government regulations. Customer shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) 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, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

3.3 Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls Customer is permitted to make against ThinkLP’s application programming interface, and, for Services that enable Customer to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in user documentation. The Subscription Services provide real-time information to enable Customer to monitor Customer’s compliance with such limitations.

3.4 Beta Services. From time to time, ThinkLP may, in its sole discretion, invite Customer to use, on a trial basis, pre-release or beta features that are in development and not yet available to all ThinkLP’s customers (“Beta Services”). Beta Services are not part of the Services, and Beta Services may be subject to additional terms and conditions, which ThinkLP will provide to Customer prior to use. Such Beta Services and all associated conversations and materials relating thereto will be considered ThinkLP Confidential Information and subject to the confidentiality provisions in this Agreement. Without limiting the generality of the foregoing, Customer agrees not to make any public statements or otherwise disclose its participation in the Beta Services without ThinkLP’s prior written consent. ThinkLP makes no representations or warranties that the Beta Services will function. ThinkLP may discontinue the Beta Services at any time in its sole discretion. ThinkLP will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. ThinkLP may, in its sole discretion, change or not release a final or commercial version of a Beta Service.

 

4.THIRD-PARTY PROVIDERS

4.1 Acquisition of Third-Party Products and Services. ThinkLP may offer Third-Party Applications for sale under Orders. Any acquisition by Customer of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between Customer and any third-party provider, is solely between Customer and the applicable third-party provider and as may be subject to separate terms. ThinkLP does not warrant or support third-party products or services, whether or not they are designated by ThinkLP as “certified” or otherwise, except as specified in an Order. No purchase of third-party products or services is required for Customer to use the Services.

4.2 Third-Party Applications and Customer Data. If Customer installs or enables Third-Party Applications for use with Services, Customer acknowledges that ThinkLP may allow providers of those Third-Party Applications to access Customer Data as required for the interoperation of such Third-Party Applications with the Services. ThinkLP shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Application providers. The Services shall allow Customer to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.

 

5.FEES AND PAYMENT FOR SERVICES

5.1 Fees. Customer shall pay all Subscription Fees, Implementation Fees, and Professional Fees specified in all Orders hereunder (collectively, “Fees”). Except as otherwise specified herein or in an Order, Fees are quoted and payable in United States dollars.
(a) Subscription Services Fees.  Unless otherwise indicated on the applicable Order or as otherwise stated in this Agreement: (i) ThinkLP will invoice Customer annually in advance for fees for Subscription Services (“Subscription Fees”); (ii) Subscription Fees are based on Subscription Services purchased and not actual usage, (iii) payment obligations are non-cancellable and Subscription Fees paid are non-refundable other than as expressly stated in this Agreement, and (iv) the number of User Subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Order. Subscription Fees for User Subscriptions added in the middle of a monthly period will be charged for that pro-rated monthly period and the monthly periods remaining in the Subscription Term.
(b) Implementation Services Fees and Professional Services Fees. Fees for Implementation Services and/or Professional Services shall be as set out in the applicable Order (“Implementation Fees” or   , as the case may be). Any amounts identified as time-and-materials in the applicable Order are solely a good-faith estimate for Customer’s budgeting and ThinkLP’s resource-scheduling purposes and are not a representation or guarantee that the work will be completed for the stated amounts; the actual amounts may be higher or lower. If the estimated amounts are expended, ThinkLP will continue to provide Implementation Services or Professional Services under the same rates and terms.

5.2 Invoicing and Payment. Invoice payment terms are as set out in the applicable Order.  Customer is responsible for maintaining complete and accurate billing and contact information.

5.3 Suspension of Services.
If any amount owing by Customer under this or any other agreement for ThinkLP’s Services is 30 or more days overdue, ThinkLP may, without limiting ThinkLP’s other rights and remedies, suspend ThinkLP’s Services to Customer until such amounts are paid in full; provided that ThinkLP shall not exercise its rights hereunder if the applicable invoice is under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.

5.4 Taxes. Unless otherwise stated, 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”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If ThinkLP has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides ThinkLP with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ThinkLP is solely responsible for taxes assessable against ThinkLP based on ThinkLP’s income, property, and employees.

 

6. PROPRIETARY RIGHTS

6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, ThinkLP reserves and retains all rights, title, and interest (including all related intellectual property rights) in and to the Services and any enhancements, modifications, improvements, updates, and upgrades thereon or related thereto, together with any deliverables provided or developed.  The Services, including any deliverables, provided under this Agreement shall not be considered works made for hire. No rights are granted to Customer hereunder other than as expressly set forth herein.

6.2 License. Upon Customer’s payment of Fees due under an applicable Order, ThinkLP grants Customer a non-exclusive, non-sublicensable, non-transferable, royalty-free license during the Subscription Term to maintain, use and run the Services solely for Customer’s internal business purposes, subject to the terms of this Agreement.

6.3 Restrictions. Customer shall not (i) permit any third party to access the Services except as permitted herein or in an Order, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

6.4 Ownership of Customer Data. As between ThinkLP and Customer, Customer exclusively own all rights, title, and interest in and to all Customer Data; provided that, Customer grants ThinkLP a limited license to use the Customer Data to provide the Services for the Term.

6.5 Suggestions. ThinkLP shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the products and services ThinkLP offers to its customers, any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the 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 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. Customer’s Confidential Information shall include Customer Data; ThinkLP’s Confidential Information shall include the Services; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Orders, 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 Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall: (a) 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); (b) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) 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 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 or otherwise involved, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of responding to such proceeding if necessary, and compiling and providing secure access to such Confidential Information.

7.4 Agreed Disclosure. Customer agrees to allow ThinkLP to reference Customer as a customer using ThinkLP’s services on ThinkLP’s website and in print copy or marketing collateral.  Customer will provide ThinkLP with an approved company logo that ThinkLP may publish on ThinkLP’s website and/or marketing collateral to communicate such relationship.

7.5 Protection of Customer Data. The Parties hereby agree that ThinkLP’s Data Processing Addendum, posted at https://www.thinklp.com/dpa/ (“DPA”), as may be updated from time to time, is incorporated herein by reference, and Customer’s acceptance of this Agreement shall be treated as execution of the DPA, including its annexes and appendices.

 

8. WARRANTIES AND DISCLAIMERS

8.1 ThinkLP Warranties. ThinkLP warrants that (i) the Subscription Services shall perform materially in accordance with user documentation during the Subscription Term, (ii) the functionality of the Subscription Services will not be materially decreased during the Subscription Term, and (iii) the Implementation Services and Professional Services shall be performed in a competent and professional manner respecting generally accepted industry standards and practices for similar services. For any breach of these warranties, Customer’s exclusive remedies shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination).

8.2 Mutual Warranties. Each Party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) 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 SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

9. MUTUAL INDEMNIFICATION

9.1 Indemnification by ThinkLP. ThinkLP shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party (“Claim”) alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Customer for any damages finally awarded against Customer in connection with any such Claim; provided, that Customer (a) promptly gives ThinkLP written notice of the Claim; (b) gives ThinkLP sole control of the defense and settlement of the Claim (provided that ThinkLP may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (c) provides to ThinkLP all reasonable assistance, at ThinkLP’s expense. For the avoidance of doubt, ThinkLP’s indemnification obligations in this Section 9.1 do not apply to Customer Data or misuse of the Services by Customer in violation of this Agreement.

9.2 Indemnification by Customer. Customer shall defend ThinkLP against any Claim made or brought against ThinkLP by a third party alleging that Customer Data, or Customer’s use of the Services in violation of this Agreement, infringes or misappropriates rights of a third party or violates applicable law, and shall indemnify ThinkLP for any damages finally awarded against ThinkLP in connection with any such Claim; provided, that ThinkLP (a) promptly gives Customer written notice of the Claim; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally release ThinkLP of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s 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 TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE AGREEMENT, A PARTY’S PERFORMANCE OR BREACH OF THE AGREEMENT, OR SERVICES AND/OR DELIVERABLES COVERED BY OR FURNISHED UNDER THE AGREEMENT, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES OR DELIVERABLES WHICH GIVE RISE TO THE CLAIM IN THE 12 MONTHS IMMEDIATELY PRECEDING SUCH INCIDENT OR CLAIM.

10.2 TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE SERVICES OR ANY OTHER DELIVERABLE, OR COST OF SUBSTITUTE SERVICES OR DELIVERABLES; WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

 

11. TERM AND TERMINATION

11.1 Term of Agreement. This Agreement commences on the date of the last signature on the first Order entered into by the Parties and continues until all User Subscriptions granted in accordance with this Agreement have expired or been terminated.
11.2 Term of User Subscriptions.
a. Initial Subscription Term. User Subscriptions purchased by Customer commence on the Service Start Effective Date specified in the applicable Order and continue for the Subscription Term specified therein (“Initial Subscription Term”). If the Service Start Effective Date in the applicable Order is not specified, the start date of the Initial Subscription Term is the last signature date in the applicable Order.
b. Renewals. The process for the renewal of User Subscriptions (each a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”) shall be as set out in the applicable Order. The pricing during a Renewal Subscription Term shall increase over the previous year’s pricing by the lesser of: (i) up to 10% or (ii) the increase in the annual Consumer Price Index, unless ThinkLP has given Customer written notice of an additional pricing increase at least 90 days before the end of such prior year of the Subscription Term. The pricing increase shall be effective on the anniversary of the Service Start Effective Date.
11.3 Termination for Cause. A Party may terminate this Agreement immediately for cause if the other Party: (i) is in material breach of this Agreement and fails to remedy such breach within 30 days of receipt of written notice; or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4 Refund or Payment upon Termination. Upon any termination for cause by Customer, ThinkLP shall refund Customer any prepaid Subscription Fees on a pro rata basis covering the remainder of the Subscription Term of all User Subscriptions after the effective date of termination. Upon any termination for cause by ThinkLP, Customer shall pay any unpaid Fees covering the remainder of the term of all Orders after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any Fees payable to ThinkLP for the period prior to the effective date of termination.
11.5 Return of Customer Data. Upon request by Customer made within 30 days after the expiry or effective date of termination of an Order for Subscription Services, ThinkLP will make available to Customer for download a file of Customer Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, ThinkLP shall have no obligation to maintain or provide any of Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in ThinkLP’s systems or otherwise in or under ThinkLP’s possession or control.
11.6 Surviving Provisions. The provisions contained in this Agreement that by their sense and context are intended to survive shall survive any termination or expiration of this Agreement, including Section 5 (Fees and Payment for Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.6 (Return of Customer Data), 12 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions).

 

12. NOTICES, GOVERNING LAW AND JURISDICTION

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: (i) personal delivery, (ii) the fifth business day after being sent by registered or certified mail, postage prepaid, addressed to the intended recipient, (iii) the second business day after being deposited with a recognized and reputable overnight courier, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices shall be addressed to the applicable address identified above, and in the case of ThinkLP, with a copy in all cases to be sent by email to [email protected].

12.2 Governing Law and Jurisdiction. The validity, interpretation, and performance of this Agreement (including any Order) shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of laws principles.  Each Party hereby submits to the non-exclusive jurisdiction of the courts of New York for resolution of disputes arising in connection with this Agreement (including any Order).

12.3 Waiver of Jury Trial. Each Party 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 (including any Order).

 

13. GENERAL PROVISIONS

13.1 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, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

13.2 Non-solicitation of Employees. During the term of this Agreement and for a period of 12 months thereafter, neither Party shall knowingly solicit for employment any of the other Party’s then current personnel who have been directly involved in the performance of the Agreement, without the prior written consent of the other Party.  The foregoing shall not apply to advertisements or general solicitations that do not specifically target the other Party’s employees.

13.3 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.

13.4 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13.6 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, without the consent of the other Party: (a) assign this Agreement and/or applicable Orders to an Affiliate; or (b) assign this Agreement in its entirety (including all Orders) 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; provided the assigning Party gives the other Party prompt written notice of such assignment. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

13.7 Entire Agreement. This Agreement, including all Schedules, addenda, and Orders, 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 Schedule, addendum, or Order, the terms of such Schedule, addendum, or Order shall prevail.

The parties have caused this Agreement to be duly executed by their authorized representatives.