Master Subscription Agreement
Terms and Conditions
This Master Subscription Services Agreement (“Agreement”) is made and entered into by and between Bryj Technologies, Inc., a Delaware corporation located at 171 Main Street #159, Los Altos, CA 94022 (“Provider”) and the client that is identified in an order form or similar document authorized by Provider pursuant to which such client subscribes for Services and purchases Deliverables from Provider (“Client”). Provider and Client are sometimes referred to together in this Agreement as the “Parties” and individually as a “Party.” This Agreement is effective as of the date that the first order form or similar document is effective (“Effective Date”).
The Parties hereby agree as follows:
1. DEFINITIONS. The following terms will have the following meanings:
1.1 “Authorized Users” shall mean Client’s employees and contractors authorized by Client to access and use the Services on Client’s behalf.
1.2 “Authorized User Data” shall mean the business email address, full name and employment title of Authorized Users that are uploaded or transmitted to Provider by or on behalf of Authorized Users.
1.3 “Build SDK” means Provider’s software development kit used for building the Client Mobile Application(s).
1.4 “Client Content” means Client content, images and materials that include, without limitation, Client’s website content, name, logos, trademarks and other Client identifying marks, for use in connection with creation of the Client Mobile Application and the provision of the Services.
1.5 “Client Mobile Application(s)” means a computer program or software application (including all Intellectual Property Rights therein) that is developed pursuant to an Order Form and which is designed to run and perform specific tasks on an End User’s mobile device (such as a phone, tablet, or watch) and includes any adaptation, enhancement, modification, derivation, addition or extension thereto (whether made by Client (at any time) or by Provider (only during the applicable Subscription Term) and all Intellectual Property Rights therein. For the avoidance of doubt, the term “Client Mobile Application” expressly excludes all Provider Technology.
1.6 “Confidential Information” is defined in Section 7.1.
1.7 “Deliverables” means the Client Mobile Application(s) and all Intellectual Property Rights therein and any other deliverables that are expressly identified as such in an Order Form. “Deliverables” do not include Provider Technology.
1.8 “Documentation” means Provider-provided user documentation related to the Services or Deliverables.
1.9 “End User(s)” means Client’s end user customers who access and use the Client Mobile Application on such users’ mobile devices (such as a phone, tablet or watch).
1.10 “Grow SDK” means Provider’s software development kit that is integrated with the Client Mobile Application(s), which communicates Usage Data to Provider and is otherwise used in conjunction with the SaaS Services.
1.11 “Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all goodwill associated therewith, (c) copyrights and copyrightable works (including without limitation computer programs), (d) trade secrets, know-how and other confidential information and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection throughout the world.
1.12 “Order Form” means an ordering document specifying the Services and Deliverables to be provided under this Agreement that is entered into between Client and Provider. All Order Forms are incorporated into the Agreement and all the terms of this Agreement shall apply to all Order Forms.
1.13 “Personal Information” means information provided to Provider by or at the direction of Client or to which access by Provider is provided in the course of Provider’s performance of this Agreement that (a) identifies an individual (by name, address, telephone number, email address or other unique identifier), (b) can be used to authenticate that individual (including, without limitation, employee identification number, a government-issued identification number, passwords or PINs and user identification (such as email address or username), financial account numbers, credit, debit or gift card numbers, credit report information, birth date, biometric or health data and answers to security questions) or (c) otherwise constitutes “nonpublic personal information” as defined by applicable law. Without limitation, Client’s business contact information (such as Client’s name, physical address, phone number and email address) is not by itself Personal Information. Personal Information constitutes “Confidential Information” under this Agreement.
1.14 “Professional Services” means implementation, integration, consulting, training and similar services provided by Provider to Client as set forth in an Order Form. Professional Services do not include SaaS Services.
1.16 “Provider Technology” means the Services, Documentation and Provider Tools, including without limitation all copies, adaptations, derivatives, additions, extensions, enhancements and modifications thereto and all Intellectual Property Rights therein.
1.17 “Provider Tools” means all Provider technology of every type and every form, including without limitation all copies, adaptations, derivatives, additions, extensions, enhancements and modifications thereto and all Intellectual Property Rights therein, that is owned or used by Provider prior to the Effective Date or developed or obtained by Provider after the Effective Date that is not solely and expressly developed exclusively for Client as a Deliverable pursuant to an Order Form. Without limitation, the Provider Tools include the Build SDK, the Grow SDK and all other software development tools and SDKs used or provided by Provider accessed or used by Client.
1.19 “SaaS Services” means all Software-as-a-Service (SaaS), Infrastructure-as-a-Service (IaaS) and Platform-as-a-Service (PaaS) services provided by Provider to Client under this Agreement.
1.20 “Services” means the services that are ordered by Client under an Order Form, including the SaaS Services and Professional Services. “Services” do not include Third-Party Services.
1.21 “Subscription Term” is the term stated in the applicable Order Form.
1.22 “Third-party Services” mean software, products and services (if any) that are provided by a third-party.
1.23 “Usage Data” means anonymized and aggregated data related to the End Users’ use of the Client Mobile Applications and SaaS Services.
2. PROVIDER RESPONSIBILITIES.
2.1 Support Services. Provider shall provide standard support for the Services to Client. Upgraded support may be purchased for an additional charge.
2.2 Personal Information, Authorized User Data and Usage Data. Provider shall not have access to any End User Personal Information. Provider shall maintain appropriate safeguards to protect the Authorized User Data and Usage Data.
2.3 Change Order. Client may request changes to an Order Form. Provider will calculate and submit for Client’s approval any adjustment to the fees and schedule that result from such requested changes. All agreed upon changes will be set forth in a written “Change Order” executed by both Parties.
3. USE OF THE SERVICES.
3.1 Usage Limits. The SaaS Services may be subject to usage limits as specified in the applicable Order Form. Use in excess of such limits shall be paid for by Client at the negotiated rates outlined in the Order Form or Provider’s then-current list price if no rates for such overages are specified in the Order Form.
3.2. Client Responsabilities. Client shall (a) be responsible for its and its Authorized Users’ compliance with this Agreement, Documentation and Order Forms and all activity occurring in its Authorized User’s accounts, (b) be responsible for the accuracy, quality and legality of Authorized User Data and Client Content and the means by which Client acquires Authorized User Data and Client Content, (c) be responsible for the interoperation of any Third-party Services that Client uses with the Services or Deliverables and compliance with terms and conditions that govern such Third-party Services, (d) prevent access to and use of the SaaS Services by anyone other than Authorized Users and promptly notify Provider of any such unauthorized access or use and (e) comply with and use the Services and Deliverables in accordance with all applicable laws, regulations and rules (including without limitation all privacy, security and data protection laws). The successful and timely provision of the Services may require Client to satisfy certain Client obligations as set forth in an Order Form or that may reasonably be required by Provider from time to time. Client’s failure to comply with this Section 3.2 may delay or otherwise adversely impact Provider’s ability to timely provide the Services and Deliverables and Provider shall not be liable for any such delay or adverse impact.
3.3. Use Restrictions. Client shall not and shall not permit its Authorized Users or any third-party to: (a) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying techniques or algorithms of the Provider Technology or disclose any of the foregoing to a third-party, (b) provide, rent, lease, lend or use the Provider Technology for timesharing or service bureau purposes, (c) sublicense, transfer or assign the Provider Technology or any of the rights or licenses granted under the Agreement (except as may be expressly permitted in this Agreement), (d) remove or obscure any trademark, product identification, proprietary marking, copyright or other notices provided with the Provider Technology, (e) interfere with or disrupt the integrity or performance of the SaaS Service, (f) permit access to or use of any Provider Technology in a way that circumvents a contractual usage limit or access or use any Provider Technology except as permitted under this Agreement, an Order Form or the Documentation, (g) except as may be expressly set forth in the Agreement, modify, copy or create derivative works based on the Provider Technology, (h) access or use the Provider Technology to build a product or service or create derivative works (except as may be expressly permitted in this Agreement), (i) use the Provider Technology to store or transmit infringing, libelous, obscene or otherwise unlawful material or store or transmit material in violation of any Intellectual Property Rights or applicable law, regulations or rules, (j) use the Provider Technology to store or transmit any code, files or scripts that can cause harm, including, without limitation, viruses, worms, time bombs and Trojan horses, (k) use the Services and Deliverables other than for Client’s own business purposes or (l) use the Services or Deliverables in any manner to directly or indirectly compete with Provider.
3.4. Export Compliance. The Provider Technology and Deliverables may be subject to export laws and regulations of the United States and other jurisdictions. Client represents that it is not named on any U.S. government denied-party list. Client shall not permit any Authorized User or End User to access or use any Service or Deliverables in a U.S. embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law, regulation or rule.
3.5. Suspension. Without limitation of Provider’s rights to terminate elsewhere in this Agreement, if Client breaches any provision of this Section 3, Provider shall notify the Client in writing and provide Client two (2) business days to remedy such breach. If Client fails to remedy such breach within such two (2) business day period or the harm that may be caused by such breach cannot be effectively remedied, Provider may immediately suspend the Services upon notice to Client until such time as the breach may be remedied.
OWNERSHIP AND LICENSES.
4.1.1 Provider. Provider is and will remain the sole and exclusive owner of all right, title and interest Provider Technology and Usage Data. Except for the rights expressly granted in this Agreement, nothing in this Agreement gives Client any right, title, or interest in or to the Provider Technology or Usage Data and Provider hereby reserves all rights not expressly granted herein.
4.1.2 Client. Client will own all right, title, and interest in and to the Deliverables only upon its full and complete payment of all amounts due to Provider for the initial Subscription Term identified in the Order Form pursuant to which such Deliverables are purchased. Until such time as Client may own the applicable Deliverables, Provider retains all right, title and interest in the Deliverables and hereby grants to Client a non-exclusive, worldwide, non-transferable, non-sublicensable (except as may expressly be permitted in this Agreement) license to use the Deliverables solely in accordance with the provisions of this Agreement. Except for the rights expressly granted in this Agreement, nothing in this Agreement gives Provider any right, title or interest in or to the Authorized User Data or the Client Content and Client reserves all rights not expressly granted herein.
4.2 SaaS Services Access. Subject to the terms and conditions of this Agreement and Client’s payment of the fees specified in the applicable Order Form, Provider hereby grants to Client a non-exclusive, worldwide, royalty-free, non-transferable, non-sublicensable (except as may expressly be permitted in this Agreement) right to access and use the SaaS Services during the applicable Subscription Term.
4.3 Provider Tools License. Subject to the terms and conditions of this Agreement and subject to Client’s payment of the fees specified in the applicable Order Form, Provider hereby grants to Client a non-exclusive, worldwide, royalty-free, non-transferable (except as may expressly be permitted in this Agreement) and non-sublicensable right to use the Provider Tools during the Subscription Term, solely in order to use the Services and Deliverables. The Provider Tools may only be used for the foregoing purpose and may not be used for any other purpose or on a standalone basis.
4.4 . Client Content and Authorized User Data License. Client grants Provider (a) a non-exclusive, worldwide, royalty-free license to collect, transmit, store, use, disclose, process, copy, modify, publicly perform, publicly display, distribute and prepare derivative works of the Client Content solely to develop the Client Mobile Application and provide the Services and Deliverables to Client during the Subscription Term and (b) a non-exclusive, worldwide, royalty-free license to use the Authorized User Data to perform the Services.
5. FEES; PAYMENT.
5.1 Fees. Client shall pay Provider the fees set forth in each Order Form.
5.2 Invoices; Payment. Fees will be invoiced in accordance with the terms of the Order Form and will be paid in US dollars unless otherwise expressly specified. All payments must be made in full no later than thirty (30) days after the date of invoice. Client shall remit payment via electronic funds transfer or check to the Provider account designated in the Order Form. Provider shall have the right to apply interest on all amounts that are not paid when due at the monthly rate of one percent (1%) or the maximum amount permitted by applicable law, whichever is less.
5.3. Taxes. The fees payable under the Agreement do not include local, state, federal or foreign sales, use, value-added, excise or personal property or other similar taxes and duties imposed on the provision of the Services or the delivery of the Deliverables, all of which Client shall be responsible for and pay in full (except those taxes based on the net income of Provider). If Client is exempt from the payment of any such taxes, Client shall provide Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. If Client is required to withhold taxes from any amounts due hereunder, Client shall remit such taxes directly to the appropriate government authority and provide evidence of such to Provider.
5.4 Suspension of Service. If Client’s account is ten (10) days or more overdue, in addition to all other rights and remedies (including the suspension and termination rights set forth in the Agreement), Provider reserves the right to suspend access to and provision of the Services upon notice to Client until such account is paid in full. If the Services are suspended and Client subsequently pays its account in full so that it is entitled to access the Services, such access will be reestablished based on the availability of the resources required at such time to do so.
TERM AND TERMINATION.
6.1 Term of the Agreement. The Agreement commences on the Effective Date and continues until all Order Forms have expired or the Agreement is earlier terminated pursuant to its terms.
6.2 Term of Subscription. The subscription term for the Services shall be as set forth in the Order Form (the “Subscription Term”).
6.3 Termination for Cause. Either Party may terminate this Agreement upon notice to the other Party if the other Party commits a material breach and fails to cure such breach within thirty (30) days following receipt of notice of such breach. If there should be more than one (1) Order Form in effect at the time when a Party is in breach of less than all such Order Forms, the breaching Party may request that the non-breaching Party only terminate the Order Form that gives rise to the applicable breach, which the non-breaching Party may choose to do or not do based on its commercially reasonable discretion.
6.4 Effect of Termination. Upon any expiration or earlier termination of this Agreement (a) Provider will terminate Client’s access to and cease providing the Services and Deliverables, (b) Client shall immediately cease any and all use of and access to all Provider Technology and (c) each Party shall return to the other Party or destroy all Confidential Information of the other Party in its possession including all copies thereof. Termination will not relieve Client of the obligation to pay Provider the fees agreed in each Order Form; except if Client terminates for Provider’s uncured material breach, in which case Provider shall provide a pro-rata refund of prepaid unused fees.
7. CONFIDENTIAL INFORMATION.
7.1 Definitions. “Confidential Information” means all confidential information of a Party (the “Disclosing Party”), whether written or oral, and whether in tangible or electronic format, disclosed or made available to the other Party (the “Receiving Party”) that is designated in writing as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information based on the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information related to, without limitation, either Party’s customer and vendor lists and information, products, strategic plans and strategies, network designs, technical information, pricing and business plans and operations will be deemed Confidential Information without any designation. Without limitation, (a) Authorized User Data is Client’s Confidential Information and (b) the Provider Technology and Usage Data are Provider’s Confidential Information.
7.2 Obligations. During the term of this Agreement and for three (3) years thereafter, Receiving Party: (a) shall treat as confidential all Confidential Information of the Disclosing Party; (b) shall not use or duplicate the Disclosing Party’s Confidential Information except as expressly permitted under the terms of or in connection with the performance of its obligations under the Agreement or as otherwise authorized in writing by the Disclosing Party; (c) shall secure and protect the Disclosing Party’s Confidential Information from unauthorized use or disclosure by using at least the same degree of care as the Receiving Party uses to avoid authorized use or disclosure of its own Confidential Information and in no event less than reasonable care and (d) shall not disclose, publish or otherwise make available the Disclosing Party’s Confidential Information to or for the use or benefit of any third-party; provided, however, that the Receiving Party may disclose the Disclosing Party’s Confidential Information to those of the Receiving Party’s third-party consultants and contractors as may be required to carry out or enforce the terms and conditions of this Agreement, provided that (i) all such third-parties are subject to an obligation of confidentiality at least as strict as the provisions of this Section and (ii) the Receiving Party remains responsible for any breach by such third-parties.
7.3 Exceptions. Notwithstanding the above, the Receiving Party’s nondisclosure obligations shall not apply to information that the Receiving Party can demonstrate: (a) was generally available to the public at the time it was disclosed or becomes generally available to the public through no fault of the Receiving Party, (b) was known to the Receiving Party, without an associated confidentiality obligation, at the time of disclosure, (c) was developed independently by the Receiving Party prior to the disclosure without use of or access to the Disclosing Party’s Confidential Information, (d) is disclosed with the prior written approval of the Disclosing Party or (e) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of the Agreement by the Receiving Party and in a manner which is otherwise not in violation of the Disclosing Party’s rights. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by the order or requirement of a court, administrative agency or other governmental body, provided that the Receiving Party shall provide reasonable advance notice (unless prohibited by applicable law) to enable the Disclosing Party to seek a protective order and provided that such information disclosed remains treated as Confidential Information for all other purposes.
7.4 Return or Destruction of Confidential Information. When requested by the Disclosing Party at any time the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information under its possession or control.
8. WARRANTIES AND DISCLAIMER.
8.1 Mutual Warranties. Each Party represents and warrants to the other that it: (a) is duly organized and in good standing under the laws of its state of incorporation or organization and is duly qualified to do business in those jurisdictions where such qualification is required and (b) has all necessary power and authority to make, execute and deliver this Agreement and perform under it.
8.2 Client Warranty. Client hereby represents and warrants that it has all right, title and interest to grant Provider the license to use the Authorized User Data and Client Content.
8.3 Provider Warranty. Provider warrants that (a) for a period thirty (30) days after their delivery, the Deliverables will materially conform to their specifications and the Documentation and (b) it will perform the Services in a good, workmanlike and professional manner. CLIENT’S SOLE AND EXCLUSIVE REMEDY AND PROVIDER’S SOLE AND EXCLUSIVE LIABILITY FOR BREACH OF ANY OF THE FOREGOING WARRANTIES SHALL BE THAT PROVIDER WILL PROMPTLY REPAIR OR REPLACE THE APPLICABLE DELIVERABLES OR REPERFORM THE SERVICES WITHIN A COMMERCIALLY REASONABLE PERIOD OF TIME.
8.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, PROVIDER MAKES NO WARRANTIES WHATSOEVER AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. PROVIDER DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE SERVICES OR DELIVERABLES WILL BE CORRECTED OR THAT THE SERVICES OR DELIVERABLES WILL MEET CLIENT’S PARTICULAR REQUIREMENTS. PROVIDER DOES NOT WARRANT THIRD-PARTY SERVICES IN ANY MANNER WHATSOEVER. PROVIDER SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, SERVICE FAILURES AND ANY OTHER PROBLEMS THAT ARISE FROM CLIENT’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, THIRD-PARTY SERVICES OR ANY OTHER THIRD-PARTY SYSTEMS.
9.1 Client Intellectual Property Rights Indemnity. Client shall defend and indemnify Provider from and against any claim, demand, suit or proceeding made or brought against Provider by a third-party that alleges that the Client Content or Authorized User Data infringes such third-party’s Intellectual Property Rights. Provider shall (a) promptly give Client notice of the claim, (b) give Client sole control of the defense and settlement of the claim (except that Client may not enter into a settlement that requires Provider to admit to wrongdoing or imposes any duty on Provider (such as payment) unless Client obtains Provider’s prior written approval, which approval may not be unreasonably withheld or delayed) and (c) give Client all reasonable assistance at Client’s expense; provided that Provider’s failure to do any of the foregoing shall not waive Client’s obligations under this Section except to the extent such failure has a material adverse effect on Client’s ability to satisfy such obligations.
9.2 Provider Intellectual Property Rights Indemnity. Provider shall defend and indemnify Client from and against any claim, demand, suit or proceeding made or brought against Client by a third-party that alleges that the Services or Deliverables infringe such third-party’s Intellectual Property Rights. Client shall (a) promptly give Provider notice of the claim, (b) give Provider sole control of the defense and settlement of the claim (except that Provider may not enter into a settlement that requires Client to admit to wrongdoing or imposes any duty on Client (such as payment) unless Provider obtains Client’s prior written approval, which approval may not be unreasonably withheld or delayed) and (c) give Provider all reasonable assistance, at Provider’s expense; provided that failure to do any of the foregoing shall not waive Provider’s obligations under this Section, except to the extent such failure has a material adverse effect on Provider’s ability to satisfy such obligations. Notwithstanding the foregoing, Provider shall not be liable for any infringement to the extent it arises as a result of (i) any modification of or additions to the Provider Technology or Deliverables performed by parties other than Provider unless such modification or addition is approved by Provider in writing, (ii) use of the Provider Technology or Deliverables in breach of any provision of this Agreement or Order Form, (iii) use of the Provider Technology or Deliverables in conjunction with Third-party Services or any software or hardware not supplied or authorized by Provider in writing, (iv) Provider’s use of the Authorized User Data or Client Content or (v) Client’s use of the Provider Technology or Deliverables in a manner not contemplated by this Agreement, the Order Form and Documentation.
9.2.1 Provider Options. If any Provider Technology or Deliverable infringes or in the reasonable determination of Provider is likely to infringe any third-party’s Intellectual Property Rights, Provider may, at its sole option and expense: (a) obtain from such third-party the right for Client to continue to use the Provider Technology or Deliverable, (b) modify the Provider Technology or Deliverable so that it does not so infringe or misappropriate or (c) terminate this Agreement and provide to Client a pro-rata refund of corresponding prepaid unused fees.
9.2.2 Sole and Exclusive Remedies. THE FOREGOING PROVISIONS OF THIS SECTION 9.2 STATE THE SOLE AND EXCLUSIVE LIABILITY AND OBLIGATIONS OF PROVIDER AND THE SOLE AND EXCLUSIVE REMEDIES OF CLIENT WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
9.3 Mutual Indemnification. Each Party shall defend and indemnify the other Party from and against claim, demand, suit or proceeding made or brought against such Party by a third-party based on, related to or connected with such Party’s gross negligence or willful misconduct, a breach of its confidentiality obligations under this Agreement and, with respect to Client’s defense and indemnification of Provider, its use of the Provider Technology or Deliverables beyond the scope of the rights granted to it or in breach of the restrictions on their use under this Agreement.
10. LIMITATIONS OF LIABILITY.
10.1 NO CONSEQUENTIAL DAMAGES. NEITHER PARTY NOR ITS AFFILIATES, NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND CONTRACTORS, SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY AND REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE.
10.2 LIABILITY CAP. THE AGGREGATE LIABILITY OF EACH PARTY BASED ON, RELATED TO CONNECTED WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CLIENT TO PROVIDER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LIABILITY ARISES.
10.3 Exceptions. The provisions of Sections 10.1 and 10.2 will not apply to amounts that are due to Provider by Client or damages caused by Client’s use of the Provider Technology or Deliverables beyond the scope of the rights granted to it or the restrictions on their use under this Agreement. Notwithstanding anything to the contrary and with respect to a Party’s obligations to defend and indemnify the other Party, Section 10.1 will not apply and the aggregate liability of each Party will not exceed an amount equal to three (3) times the amounts paid or payable by Client to Provider in the twelve (12) month period prior to the date on which the liability arises or $1,000,000, whichever is greater.
11. GENERAL PROVISIONS.
11.1 Governing Law, Dispute Resolution and Attorney Fees. This Agreement is entered into in the State of California, and its validity, construction, interpretation and legal effect will be governed by the laws and judicial decisions of the United States of America and the State of California (irrespective of California’s choice of law principles) and without application of the United Nations Convention on the International Sale of Goods. [If Client is located in the United States the following provision will apply:] Any action at law or in equity arising under this Agreement (and any action to compel arbitration, seek equitable relief or enforce an arbitral award) will be filed only in an appropriate State or Federal Court located in the County of Santa Clara County, California. The Parties hereby irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for the purposes of litigating any such action. The prevailing Party in any such proceeding shall be entitled to recover from the other Party its reasonable attorneys’ fees and costs incurred in connection with such proceeding. [If Client is located outside the United States the following provision will apply:]All disputes that are based on, related to or connected with this Agreement will be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said Rules. The language of the arbitration will be English and the arbitration will be conducted in Santa Clara County, California. The Parties hereby irrevocably consent and submit to the exclusive personal jurisdiction and venue thereof for the purposes of arbitrating any such action. The prevailing Party in any such proceeding shall be entitled to recover from the other Party its reasonable attorneys’ fees and costs incurred in connection with such proceeding (including, without limitation, all fees and amounts paid to the International Chamber of Commerce). The Parties shall keep confidential (a) the fact that any arbitration is taking place, (b) all awards and rulings and (c) all information and materials used in or for the arbitration.
11.2 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between the Parties regarding its subject matter and supersedes all prior and contemporaneous agreements and arrangements, written or oral, concerning such subject matter. Any term or condition in a Client purchase order or in any other Client order documentation (excluding accepted Order Forms) is void. If there is any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) this Agreement and (3) the Documentation.
11.3 Amendments. This Agreement may only be amended, supplemented or modified by Provider from time to time in its sole discretion. This Agreement as so amended, supplemented or modified will be effective and binding upon the Parties when it is posted on this website. Client is responsible for checking this Agreement periodically so that it may be informed of any such amendments, supplementations or modifications.
11.4 Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, it will be deemed omitted and the remaining provisions will continue in full force without being waived or diminished in any way. The Parties shall replace any invalid or unenforceable provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
11.5 Waiver. The waiver by either Party of a breach of any provision of the Agreement will not be deemed a waiver any other or subsequent breach.
11.6 Assignment. The Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Neither Party shall assign this Agreement without the prior written consent of the other Parties, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Provider may assign or transfer the Agreement pursuant to a sale of all or substantially all its stock or assets or a merger and may subcontract all or part of its duties under this Agreement.
11.7 No Third-party Beneficiary. Except as may be expressly provided for, nothing contained in this Agreement will be deemed to create any third-party beneficiary or any right or action for any third-party or entity whatsoever.
11.8 Independent Contractors. The Parties are independent contractors. There is no partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party may bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
11.9 Publicity. Provider may include and disclose the name and logo of Client in its list of its customers.
11.10 Notices. Any notice or other communication under this Agreement must be given in writing and either (a) delivered in person, (b) transmitted by email, (c) delivered by overnight FedEx or similar overnight commercial delivery service (which must be internationally recognized if Client is located outside the United States) or (d) mailed by certified mail, postage prepaid, return receipt requested (if Client is located in the United States) to the Parties to which such notice or communication is to be given at the address first set forth above or the email address set forth below or at such other address or email address as may be given from time to time by one Party to the other Party in accordance with this Section. Each such notice or other communication will be effective when actually received as evidenced by receipt or similar documentation or, in the case of email, as evidenced by electronic “read” receipt or reply acknowledgement email from the recipient that is actually received by the sender.
11.11 Email Transmission, Counterparts. The Agreement (including each Order Form) may be executed in electronic/digital counterparts each of which when executed shall be deemed to be an original and all of which taken together shall constitute one agreement.
11.12 Force Majeure. Except for Client’s obligation to pay amounts due to Provider hereunder, neither Party shall be liable for any failure to meet its obligations under this Agreement where such failure is caused by events beyond its reasonable control including, but not limited to, failure of communications networks, governmental action, epidemic, pandemic (including without limitation COVID-19), fire, storms and floods and other acts of God (“Force Majeure”); provided that the effected Party gives prompt notice to the other Party and uses commercially reasonable efforts to meet such obligations. 11.13 Survival. The following Sections shall survive the expiration or earlier termination of this Agreement: 4.1, 4.2 and 4.3 (Ownership and Licenses), 5.1, 5.2 and 5.3 (Fees; Payment), 6.4 (Effect of Termination), 8 (Confidential Information), 8.4 (Disclaimer of Warranties), 9 (Indemnification), 10 (Limitations of Liability) and 11 (General Provisions).
11.13 Survival. The following Sections shall survive the expiration or earlier termination of this Agreement: 4.1, 4.2 and 4.3 (Ownership and Licenses), 5.1, 5.2 and 5.3 (Fees; Payment), 6.4 (Effect of Termination), 8 (Confidential Information), 8.4 (Disclaimer of Warranties), 9 (Indemnification), 10 (Limitations of Liability) and 11 (General Provisions).