9.1. Authority. Each Party represents and warrants to the other that: (a) it has full power and authority to enter in and perform this Agreement and the execution and delivery of this Agreement has been duly authorized; and (b) the performance of this Agreement by such Party will not: (i) violate any regulations or applicable law, (ii) breach any other agreement to which such Party is a party or is bound; or (iii) violate any obligation owed by such Party to any third party.
9.2. Applicable Law. This Agreement is and will be governed by and construed in accordance with the laws of the State of California, USA. Exclusive venue for any action, claim, proceeding, or suit related to this Agreement will be the federal and state courts located in San Francisco County, State of California, USA. Client irrevocably consents to the personal jurisdiction of such courts.
9.3. Assignment. Neither Party may assign or transfer this Agreement or any rights herein or delegate any duties herein without the prior written consent of the other Party, except to an affiliate of such Party or otherwise in connection with a merger, consolidation, reorganization, or sale of all or substantially all of its assets. Any attempted assignment, transfer, or delegation in contravention of this Section is null and void. This Agreement will be binding upon and inure to the benefit of any successors and permitted assigns. Notwithstanding the foregoing, Company may engage subcontractors or in the performance of any of its obligations hereunder without the prior written consent of Client.
9.4. Entire Agreement. This Agreement, including any Exhibits hereto, constitutes the entire agreement between the Parties relating to the subject matter hereof, and there are no other representations, understandings or agreements between the Parties relating to the subject matter hereof. The Parties may use standard business forms or other communications but use of such forms is for convenience only and does not alter the provisions of this Agreement. No modifications or amendments to this Agreement or the Order Form, and no waiver of any provisions of this Agreement, will be valid unless in writing and signed by duly authorized representatives of the Parties. In the event of a conflict between the terms of an Order Form and the terms of this Agreement, the terms of this Agreement shall govern, except that The Parties may specify in the applicable Order Form that a particular provision of the Order Form is to supersede a provision of this Agreement, in which case the superseding Order Form provisions shall be applicable only to such Order Form and shall be effective for such Order Form only if such provision expressly references the applicable Section of this Agreement that is to be modified and clearly states that such provision supersedes the conflicting or inconsistent provision in this Agreement.
9.5. Nonwaiver. Any failure or delay by either Party to exercise or partially exercise any right, power, or privilege under this Agreement will not be deemed a waiver of any such right, power, or privilege. No waiver by either Party of a breach of any term, provision, or condition of this Agreement by the other Party will constitute a waiver of any succeeding breach of the same or any other provision in this Agreement. No waiver will be valid unless executed in writing by the Party making the waiver.
9.6. Force Majeure. The failure to perform or delay in performance by either Party shall be excused to the extent that performance is rendered commercially impracticable by strike, fire, flood, terrorism, governmental acts or orders or restrictions, or any other reason where a Party’s failure to perform is beyond such Party’s reasonable control and not caused by the negligence of such Party (each, a “Force Majeure Event”). In the event that either Party’s performance is directly impacted by a Force Majeure Event such Party shall provide prompt written notice to the other Party.
9.7. Relationship of the Parties. Nothing in this Agreement will create, or be deemed to create, a partnership or the relationship of employer and employee between the Parties. Client understands and agrees that, notwithstanding Client’s limitations on use and access to the Software as set forth in this Agreement, nothing shall prohibit either party from entering into an agreement for the same or similar Software or Services from any other third party.
9.8. No Solicitation of Employees. Client agrees that during the term of this Agreement, and for a period of one year after the termination or expiration of this Agreement, it will not solicit, without Company’s prior written consent, any person employed then by Compan y if such person became known to Client through the relationship established pursuant to this Agreement. This prohibition will not apply to job opportunities posted on recruiting websites or in other publications in which Client seeks to find candidates for open positions (absent direct solicitation and/or recruitment).
9.9. No Third Party Beneficiaries. Except as provided in Section 8, this Agreement does not and is not intended to confer any enforceable rights or remedies upon any person or party other than the Parties.
9.10. Severability. If any term of this Agreement will to any extent be held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term will be valid and enforceable to the fullest extent permitted by law.
9.11. Use of Headings. Any use of headings in this Agreement is for convenience purposes only, and are headings not intended to be part of or to affect the meaning or interpretation of this Agreement.
9.12. Notices. Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given if hand delivered or sent by first class certified or overnight delivery mail, postage prepaid, to the other Party at the address on their Order Form.