PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICES OFFERED BY OVERVIEW CORPORATION (“OVERVIEW”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH OVERVIEW WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CLIENT”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA OVERVIEW’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY OVERVIEW SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Subject to the terms and conditions contained in this Agreement, Client desires to obtain from Company, and Company desires to provide to Client, Company’s innovative real-time error detection data analytics software (“Software”), which may be provided to Client on-premise (the “Licensed Software”) or via a hosted environment provided by Company (the “SaaS”), related technical support as set forth in Section 1.3 and, together with any other professional services to be provided by Company hereunder, the “Services”), and Hardware (as defined in Section 1.4).
Now, therefore, the Parties hereby agree as follows:
1. Services and Hardware.
1.1. Order Forms. Client may from time-to-time purchase from Company Software, Services, or Hardware as set forth in an order form substantially in the form attached as Exhibit A hereto (the “Order Form”). An Order Form shall be considered accepted by Client upon Client’s signature thereto or Client’s issuance of a purchase order referencing the Order Form.
1.2. Use of Software. Subject to the other limitations on use described in this Agreement, Client may use the Software solely at Client’s manufacturing and/or design facilities (“Factory”), and shall not, without the prior written approval of Company, allow any third party, except as permitted elsewhere in this Agreement, to use or itself use the Software for any other purpose or for the benefit of any third party.
1.3. IT Support. Company will provide Client with reasonable support for the Software, Services and Hardware as needed from time to time during the Subscription Term Monday through Friday, between 9:00AM to 5:00PM Pacific Time, excluding Company-recognized holidays (the “IT Support”) Such IT Support is only available remotely. In the event on-site support is requested or required, additional fees may apply.
1.4. Software Customization (if applicable). To the extent specified on the Order Form, Company shall make any customizations to the Software for Client’s specific use of the Software (the “Customization”). Client explicitly agrees and acknowledges that any such Customization will be deemed a component of the Software and that Company shall retain all proprietary rights therein pursuant to Section 4.1.
1.5. Sale and Installation of Hardware (if applicable). Client agrees to purchase from Company, and Company agrees to sell to Client, the hardware, if any, specified on the Order Form (the “Hardware”). To the extent that this Agreement covers the purchase and sale of Hardware (as specified on the Order Form), on the date and time mutually agreed to by the Parties, Company will: (i) install the Hardware at the Factory, and (ii) use commercially reasonable efforts to tune the Software to Client’s designated inspection point. Client agrees to work with Company to identify the problem area(s) in its Factory so that Company can determine the best location(s) to place the Hardware.
1.6. Software Changes. Company reserves the right to make changes to the Software from time to time including upgrades, enhancements, bug-fixes, and other modifications to improve the Software, provided that such changes shall not eliminate or materially interfere with the core function of the Software.
2. Term and Termination.
2.1. Term. This Agreement will commence on the date the Order Form is accepted by Client (“Effective Date”) and will continue until terminated by either party pursuant to this Section 2 (the “Term”). The purchase of Software shall be for the Subscription Term set forth in the applicable Order Form. After expiration of the initial Subscription Term defined in the Order Form (the “Initial Term”), the Subscription Term shall automatically renew for successive one (1) year terms (each, a “Renewal Term”), unless at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable, either Party provides written notice to the other Party of non-renewal, in which case the Order Form shall terminate at the expiration of the Initial Term or the then-current Renewal Term, as applicable.
2.2. Termination. Either Party may terminate this Agreement for any reason upon written notice to the other Party; provided, however, that in the event there are any Order Forms in place at the time of such termination, such termination shall not take effect until expiration or termination of the last Order Form. Either Party may terminate this Agreement or any particular Order Form in the event that the other Party breaches any material provision of this Agreement or such Order Form and fails to cure such breach within thirty (30) days after the receipt from the non-breaching Party of notice specifying the breach requiring its remedy, unless such material breach cannot be cured, in which case the non-breaching Party may terminate this Agreement effective immediately upon written notice to the other Party. In the event Client files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act, or has any such petition filed against it which is not discharged within sixty (60) days of the filing thereof, then Company may terminate this Agreement and all Order Forms effective immediately upon written notice to Client.
2.3. Effect of Termination. Upon any expiration or termination of this Agreement or an applicable Order Form, Client will cease any and all further use of the Software. Upon termination of this Agreement or an applicable Order Form, Client shall pay Company any Fees for Services rendered prior to the effective date of the termination in accordance with this Agreement. In no event shall Client be entitled to a refund of any fees paid for Software.
2.4. Survival. All sections of this Agreement that by their nature and context are intended to survive termination, including but not limited to Section 2.4 and Sections 4 through 9, shall survive any expiration or termination of this Agreement.
3. Payment of Fees.
3.1. Fees. In consideration for Software, the Customization (if any), the Hardware (if any) and any Services to be provided by Company under this Agreement, Client shall pay to Company the fees (“Fees”) in the amounts and manner set forth on the Order Form.
3.2. Payment. Payment shall be made in immediately available funds in USD in the manner set forth on the Order Form. Any late fees shall incur interest until paid in full at the lesser of: (a) 1.5% per month or (b) the maximum rate allowed by applicable law.
3.3. Taxes. The Fees do not include sales tax, use tax, and other governmental charges, as may be appropriate under law (which will be separately identified in the invoice, if applicable).
4. Proprietary Rights.
4.1. Software. Company owns and retains all right, title and interest in and to: (a) the Software, all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with the Software or Services (including, without limitation, any Customizations); and (c) all intellectual property rights related to any of the foregoing. Subject to the terms and conditions of this Agreement, Company hereby grants to Client a non-perpetual, non-exclusive, non-transferable, non-sublicensable right and license, during the Subscription Term, to access and use the Software, and all of its features and functionality for the purposes set forth in this Agreement.
4.2. Hardware (if applicable). Subject to the terms of this Agreement, upon installation of the Hardware (if any) as set forth in this Agreement, title to the Hardware shall transfer to and at all times remain with Client, and Client will bear any risk of loss or damage to the Hardware at all times thereafter, including any damage or loss of the Hardware, regardless of cause or fault.
4.3. Company Content. Company will retain all right, title and interest it may have in and to the data and any written reports, transcripts, notes, requirements documents, specifications, materials, flow charts, notes, outlines, and the like, excluding any Client Data (collectively, “Company Content”), in each case that are developed, conceived, or made by Company or the Software in connection with the Software or Services that are derived from, based, on or contain any Company Content. Client has no right to use or disclose any Company Content except for use of the Software or Services as set forth in this Agreement.
4.4. Client Data. Client shall own all right, title, and interest in and to any of Client’s data that Client provides to Company in connection with Client’s use or receipt of the Software or Services(“Client Data”),. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Software and related technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Company will be free (during and after the term hereof) to: (i) use such information and data to improve and enhance the Software and Services and for other development, diagnostic, and corrective purposes in connection with the Software, Services, and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
4.5. Feedback. Client and its personnel may provide ideas, suggestions, comments, or other feedback regarding any part of the Software or Services, including ideas for new or improved products or technologies, product enhancements, processes, materials, marketing plans, or new product names (collectively “Feedback”). Company shall own any and all Feedback provided to Company. To the extent that Company does not own any Feedback, Client hereby grants to Company an exclusive, perpetual, royalty free license to use the Feedback for its business purposes, and Client shall not be entitled to any compensation for such Feedback.
4.6. Publicity. Company may use Client’s name and/or logo to refer to Client as a customer of Company on its website and other marketing materials.
4.7. Deliverables. Company shall own all right, title, and interest in and to any information or other deliverables developed and provided by Company in its performance of any Services.
5. Restrictions; Representation & Warranties and Responsibilities.
5.1. Restrictions. Client will not, under any circumstances, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software, documentation or data related to the Software; modify, translate, or create derivative works based on the Software (except to the extent expressly permitted by Company or authorized within the Software); use the Software for the benefit of a third party; or remove any proprietary notices or labels from the Software.
5.2. Client’s Representations and Warranties. Client represents, covenants, and warrants that Client will use the Software only in compliance with the terms of this Agreement and any instructions provided by Company, and otherwise in compliance with all applicable laws. Although Company has no obligation to monitor Client’s use of the Software, Company may do so and may prohibit any use of the Software it believes may be (or alleged to be) in violation of this Agreement.
5.3. Client’s Responsibilities. Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Hardware and the Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Hardware, the Equipment, any customer accounts, passwords and files for all uses related to the Software.
5.4. Suspension of Software. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend, or permanently revoke, Client’s access to any portion or all of the Software if Company reasonably determines that: (a) there is a threat or attack on the Software; (b) Client’s use of the Software disrupts or poses a security risk to the Software; or (c) Client is using the Software for fraudulent or illegal activities or otherwise in violation of the terms of this Agreement”); or (d) Client fails to timely pay Fees when due (any such temporary suspension, a ” Suspension” and any such revocation, a ” Revocation. Company shall use commercially reasonable efforts to provide three (3) days’ written notice of any Suspension or Revocation to Client and, in cases of Suspensions, to provide updates regarding resumption of access to the Software following any Suspension. In cases of Suspensions, Company shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably practicable after the event giving rise to the Suspension is cured. Company shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any third party may incur as a result of a Suspension or Revocation, and Client shall not be entitled to any refunds of any Fees on account of any Suspension or Revocation.
6.1. Confidential Information. During the course of this Agreement, each Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”) certain non-public information or materials relating to the Disclosing Party’s products, intellectual property, business, business plans, marketing programs and efforts, customer lists, customer information, financial information and other confidential information and trade secrets which should reasonably be understood by the Receiving Party to be confidential, given the nature of the information and the circumstances surrounding disclosure thereof (“Confidential Information”). Client’s Confidential Information shall also include Client Data; Company’s Confidential Information shall also include Company Data.
6.2. Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no breach by the Receiving Party of this Agreement; (b) was previously known to the Receiving Party prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third party without any breach of any obligation of confidentiality; or (d) was independently developed by the Receiving Party hereto without reference to Confidential Information of the Disclosing Party. In the event that any Confidential Information is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, the Receiving Party, upon receiving such subpoena or order, shall: (i) promptly inform the Disclosing Party in writing and provide a copy thereof (to the extent it is legally able to do so); (ii) cooperate with the Disclosing Party in limiting disclosure of the Disclosing Party’s Confidential Information; and (iii) only disclose that portion of Confidential Information necessary to comply with such subpoena or order.
6.3. Protection of Confidential Information. Except as expressly provided herein, the Receiving Party will not use or disclose any Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent, except disclosure to and subsequent uses by the Receiving Party’s or its affiliates’ respective authorized employees or consultants on a need-to-know basis for the purpose of performing their obligations pursuant to this Agreement, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the Receiving Party’s obligations under this Section 6. Subject to the foregoing nondisclosure and non-use obligations, the Receiving Party agrees to use at least the same care and precaution in protecting such Confidential Information as the Receiving Party uses to protect the Receiving Party’s own Confidential Information and trade secrets, and in no event less than reasonable care. Each Party will be responsible for a breach of this Section 6 by any of its or its affiliates’ respective employees or consultants as if they were party hereto. Each Party acknowledges that due to the unique nature of the other Party’s Confidential Information, the Disclosing Party may not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the Disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure. Neither Party shall remove or alter any proprietary markings (e.g., copyright and trademark notices) on the other Party’s Confidential Information.
6.4. Return of Confidential Information. On the Disclosing Party’s written request, the Receiving Party will promptly: (a) return or destroy, at the Receiving Party’s option, all originals and copies of all documents and materials it has received containing the Disclosing Party’s Confidential Information; and (b) deliver or destroy, at the Receiving Party’s option, all originals and copies of all summaries, records, descriptions, modifications, negatives, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by the Receiving Party, prepared under its direction, or at its request from the documents and materials referred to in subparagraph (a), and provide a written statement to the Disclosing Party certifying that all documents and materials referred to in subparagraphs (a) and (b) have been delivered to the Disclosing Party or destroyed, as requested by the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may retain a copy of the Disclosing Party’s Confidential Information solely for archival purposes or as otherwise required by law, provided that any Confidential Information so retained shall continue to be subject to the confidentiality obligations in this Section 6.
6.5. Survival. The obligations of this Section 6 shall survive termination or expiration of this Agreement for a period of one (1) year.
7. Warranty and Warranty Disclaimer.
7.1. Hardware Warranty (if applicable). This Section 7.1 shall only apply in the event that Client is purchasing any Hardware from Company. Company represents and warrants that it (a) has the legal power to enter into and perform its obligations under this Agreement with respect to sale of the Hardware to Client; and (b) has obtained and will maintain any and all consents, approvals, licenses, or other authorizations necessary for the sale of the Hardware to Client. Company warrants that any Hardware sold to Client pursuant to this Agreement will substantially conform to the specifications described in the Order Form or any other written communication from Company for a period of one (1) year beginning on the Effective Date of this Agreement (“Hardware Warranty”). The Hardware Warranty does not extend to any damage or failure which results from alteration, accident, theft, misuse, abuse, neglect, abnormal use, improper or unauthorized use or repairs, or improper maintenance by Client, or any third-party. In the event that Company determines the alleged defect is covered by this Hardware Warranty, then Company shall, in its sole discretion, repair the Hardware at its own expense or replace the Hardware with comparable hardware. THIS LIMITED HARDWARE WARRANTY IS NON-TRANSFERABLE AND SHALL EXTEND ONLY TO CLIENT AND ANY THIRD-PARTY MUST BE APPROVED IN WRITING BY COMPANY AND SHALL NOT APPLY TO ANY SUBSEQUENT RECIPIENT OF ANY HARDWARE SOLD TO CLIENT UNDER THIS AGREEMENT.
7.2. Software Warranties. Company represents and warrants that all Software shall materially conform to their then-current generally available documentation, specifications, user manuals, etc. for the Software. For SaaS, Client must notify Company of any breach of this warranty within thirty (30) days of the first occurrence of such breach. For Licensed Software, Client must notify Company within one (1) year of Client’s receipt thereof. Client’s sole and exclusive remedy, and Company’s sole and exclusive liability, for a breach of the foregoing warranty will be for Company to provide Support Services to repair or replace the relevant Product or terminate the relevant Order and issue a refund for any pre-paid, unearned fees for the affected portion of the Product. Company shall not be responsible for any breach of the foregoing warranty resulting from Client’s abuse or misuse of the Software or failure to use the Software as described in this Agreement, including failure to use the Software in accordance with its operational requirements.
7.3. Service Warranties. Company warrants that Company shall provide the Services in a professional, workmanlike manner consistent with generally accepted industry standards. Client must notify Company of any breach of this warranty within thirty (30) days of delivery. Client’s sole and exclusive remedy, and Company’s sole and exclusive liability, for a breach of the foregoing warranty will be for Company, in its sole discretion, to use reasonable efforts to re-perform the Services or terminate the relevant Order and issue a refund for the portion of price paid for the non-conforming Services.
7.4. Warranty Disclaimer. CLIENT AGREES AND ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (A) THE HARDWARE, SOFTWARE, AND SERVICES ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE; (B) COMPANY DOES NOT WARRANT THAT THE SOFTWARE AND/OR ANY HARDWARE (IF PROVIDED BY COMPANY UNDER THIS AGREEMENT) WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE HARDWARE OR SOFTWARE WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE, OR THAT THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE OR ANY DATA PROVIDED BY COMPANY THROUGH THE SOFTWARE OR SERVICES WILL BE ACCURATE; AND (C) COMPANY SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY HARDWARE, SOFTWARE, PRODUCTS, OR SERVICES PROVIDED WITH OR INCORPORATED INTO THE SOFTWARE.
7.5. Client Warranties. Client represents and warrants that (i) it owns, or is a licensee of, having the right to sublicense, the Client Data and that Client has the right to grant Company the rights that Client purports to grant in this Agreement; (ii) Company’s possession or use of the Client Data does not and will not infringe on, violate, or misappropriate any patent, trademark, or copyright, or misappropriate any trade secret or other proprietary right of any third party; (iii) the Client Data shall be free from viruses, trojan horses, or other similar elements which could harm the systems or software used by Company to provide the Products; and (iv) it will not use, nor will it allow any third parties under its control to use, the Products or Services for high risk activities, such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Products or Services could lead to death, personal injury, or environmental damage.
8. Indemnification; Limitation of Liability.
8.1. Indemnification by Client. Client will indemnify, defend at Company’s request, and hold harmless Company and its directors, officers, employees, agents, and other representatives (“Company Indemnified Parties”) against any loss, damage, liability, costs, or expenses (including reasonable attorneys’ fees and expenses) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Company or any Company Indemnified Party by a third party arising from or relating to: (a) any breach of any representation or warranty of Client contained in this Agreement; (b) any bodily injury or property damage related to the provision of or use of the Hardware; (c) any breach by Client and its personnel of Client’s obligations hereunder, including without limitation, any breach of Confidential Information of Company; or (d) the intentional or reckless acts or omissions of Client and its personnel or of any other person or entity acting for, on behalf of, at the direction of, or under the control of Client.
8.2. Indemnification by Company. If any action is instituted by a third-party against Client based upon a claim that the Software infringes the intellectual property rights of a third-party (“Infringement Claim”), Company shall defend, indemnify, and hold harmless Client and its respective directors, officers, employees, agents, parent, subsidiary, and other affiliates as applicable (collectively, “Client Indemnified Parties”), from and against all losses attributable to such Infringement Claims provided, however, Company shall have no liability to Client for any Infringement Claim to extent that such action arises out (a) of a breach of this Agreement by Client, or any Client Indemnified Parties; (b) the combination of the Software with any product, software, solution, or service not entirely developed and provided by Company; (c) use of the Software outside the scope of the licenses or rights set forth in this Agreement or in violation of any law or any restriction or limitation set forth in this Agreement; or (d) Client’s failure to comply with Company’s direction to cease any activity that in Company’s reasonable judgment may result in an Infringement Claim. Company may, at its sole option and expense: (i) procure for Client the right to continue using the allegedly infringing Software; (ii) replace or modify such allegedly infringing Software; or (c) terminate this Agreement. THE TERMS IN THIS SECTION 8.2 SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8.2, COMPANY SHALL NOT HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY CLIENT FOR THIRD PARTY CLAIMS.
8.3. Indemnification Procedure. The obligations of each Party to indemnify the other pursuant to this Section 8 are conditioned upon the indemnified Party: (a) giving prompt written notice of any qualifying claim to the indemnifying Party once the indemnified Party becomes aware of such claim (provided the failure to provide prompt written notice to the indemnifying Party will not alleviate an indemnifying Party’s obligations under this Section 8 to the extent any associated delay does not materially prejudice or impair the defense of the related claims); (b) granting the indemnifying Party the option to take sole control of the defense (including granting the indemnifying Party the right to select and use counsel of its own choosing) and settlement of the claim (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified Party); and (c) providing reasonable cooperation to the indemnifying Party and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the claim.
8.4. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, (A) NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, IN CONNECTION WITH THIS AGREEMENT; AND (B) EXCEPT FOR CLIENT’S OBLIGATION TO PAY THE FEES AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE FEES ACTUALLY PAID BY CLIENT TO COMPANY UNDER THE ORDER FORM FROM WHICH THE LIABILITY AROSE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING DAMAGES EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8.4 REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY OR THAT THE PRICES PAID BY CLIENT FOR THE HARDWARE, SOFTWARE, OR SERVICES WOULD HAVE BEEN HIGHER.
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.