1.1. This Agreement shall apply to Flywheel’s Segmentation Platform (the “Flywheel Technology”) and corresponding services(the “Platform Enablement and Support Services”), each as further described in order form(s) entered into by the Parties hereunder (each an “Order Form”). Order Forms shall be in a format set by Flywheel and signed by an authorized representative of each Party that sets forth (i) the scope of Flywheel Technology that Provider licenses to Client thereunder,(ii) Provider’s data and engineering Support Services to integrate, deploy, and assist with the use of the FlywheelTechnology, (iii) the fully enumerated scope of data destinations (the “Data Destinations”), (iv) the fees to be charged (the“Fees”), and (v) the term of the applicable Order Form. While each Order Form shall be governed by this Agreement, eachOrder Form also shall serve as a separate agreement. If there are any terms and conditions in an Order Form that conflict with the terms and conditions in this Agreement, then the terms and conditions in that Order Form shall take precedence to those in this Agreement solely with respect to such Order Form.
- Fees and Payment Terms and Invoicing.
2.1. Fees. Client will pay the Fees as set forth in the Order Form, including any minimums. Except as otherwise specified herein, (i) Flywheel Technology Fees are based on the Flywheel Technology rights granted, and not actual usage by Client,(ii) payment obligations are non-cancelable except as expressly set forth in this Agreement or the applicable Order Form, and (iii) fees paid are non-refundable.
2.2. Payment Terms. During the Term as hereinafter defined, Provider will invoice Client (which may be sent by email) for theFees in accordance with the relevant Order Form. In the case of monthly Fees, Provider will invoice Client in advance on the first of the month, and in the case of one-time fees, Provider will invoice Client at the start of the term of such OrderForm. Unless Client notifies Provider within ten (10) days of receipt of an invoice of its good faith reason to a dispute to any Fees in such invoice, Client shall pay Provider all amounts within thirty (30) days after the invoice date. Any Fees that are subject to a good faith dispute shall be paid within thirty (30) days after such dispute is resolved. If any Fees are not received by Provider by their due date, then without limiting Provider’s rights or remedies hereunder or at law, such Fees may accrue late interest at a rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is greater, plus all expenses of collection. Without limiting its other remedies, Provider may suspend and/or revoke access to the Flywheel Technology for nonpayment of any Fees.
2.3. Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).Client is responsible for all Taxes associated with its purchases hereunder. If Provider has the legal obligation to pay or collect Taxes for which Client is responsible under this section, Provider will invoice Client and Client will pay that amount unless Client provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.1. Software-as-a-Service. “Software Services” shall include access to the Flywheel Technology and related infrastructure in a hosted environment provided and maintained by Flywheel via a web site or another designated IP address.
3.2. Software Hosting and Access Model. Flywheel shall provide Software Services in a hosted, virtualized environment on either Amazon Web Services, Microsoft Azure, or Google Cloud Platform (referred to as “Cloud Hosting”), which will be made available to Client and its users under this Agreement and corresponding Order Form(s). The Cloud Hosting model may be further specified in corresponding Order Form(s), along with specific user access requirements.
- Platform Enablement and Support.
4.1. Platform Enablement and Support. Order Form(s) may list and detail Platform Enablement and/or Support Services, including, but not limited to: (i) integration services, which are systems integration and data engineering services performed by Provider to assist in the deployment and integration of Flywheel Technology, and (ii) product usage support, which are services provided in response to requests for support by Client’s users who contact Provider firstname.lastname@example.org. Client agrees to purchase the number of Platform Enablement and Support Services in the increments listed on an Order Form. All Platform Enablement and Support Services are non-refundable. Client will have the option to increase Platform Enablement and Support Services with Provider’s written consent and a corresponding amendment to the applicable Order Form.
4.2. Intellectual Property Rights. Client acknowledges and agrees that Provider retains all right, title, and interest in and to any and all rights arising out of or related to the output of the Platform Enablement and Support Services. Subject to the terms and conditions of this Agreement, Provider grants Client a perpetual, irrevocable, royalty-free, fully-paid, non-exclusive, worldwide license to internally use, modify, reproduce, and prepare derivative works of the deliverables of the PlatformEnablement and Support Services specifically provided to Client, including the right to integrate the deliverables intoClient’s software, systems and internal processes.
- Personal Information.
5.1 Data Protection Addendum. The Parties agree to be bound by and adhere to the Data Protection Addendum incorporated into this Agreement by reference and available at https://www.flywheelsoftware.com/legal/dpa with regard to the use of information that identifies one or more individuals (“Personal Information”).
- Technology Terms and Conditions.
6.1. Grant of Rights. Subject to the terms of this Agreement, Provider grants to Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable, right to use the Flywheel Technology as described in any fully executed Order Form during the term set forth therein for the sole purpose of third-party sales and marketing system integration(s). Client may use the Flywheel Technology in executable format for its own internal use. Client may not, however, transfer or sublicense theLicense nor the Flywheel Technology to any third party, in whole or in part, in any form, whether modified or unmodified.
6.2. Usage Restrictions. Client and its users shall only access and use the Flywheel Technology in accordance with the terms of this Agreement, the applicable Order Form, and all of Provider’s online documentation, user guidance, training, and other materials relating to such Flywheel Technology. Client will not, directly or indirectly (a) make the Flywheel Technology available to any third party, or use the Flywheel Technology for the benefit of anyone other than Client, unless approved in writing by Provider, (b) sell, resell, license, sublicense, distribute, make available, rent or lease Flywheel Technology, (c) useFlywheel Technology to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (d) use Flywheel Technology to store or transmit malicious code, (e)permit direct or indirect access to or use of any Flywheel Technology in a way that circumvents a contractual usage limit, or use any Flywheel Technology to access or use any Provider intellectual property except as permitted under this Agreement or corresponding Order Form, (f) modify, copy, or create derivative works based on the Flywheel Technology or any part, feature, or function thereof, (g) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Flywheel Technology or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, or functions of the Flywheel Technology, or (3) copy any ideas, features, or functions of the FlywheelTechnology, (h) remove any proprietary notices from the Flywheel Technology; or (i) use the Flywheel Technology in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Client shall not use open source code for development of or in any authorized derivative work of the Flywheel Technology in any manner that would subject the Flywheel Technology to open source distribution. Provider may suspend and/or terminate Client’s access to any portion or all of the Flywheel Technology if Provider reasonably determines that (A) there is a disruption, security risk, threat or attack on any of the FlywheelTechnology or to any other customer or vendor of Provider; (B) Client is using the Flywheel Technology for fraudulent or illegal activities; (C) Client fails to make payments of Fees when due and/or has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (D) Provider’s provision of the FlywheelTechnology to Client is prohibited by applicable law; or (E) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Client to access the Flywheel Technology (any such suspension a “Service Suspension”). Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client may incur as a result of a Service Suspension.
6.3. Client Responsibilities. Client will (a) grant Provider with the authorization and access to each of the data sources listed in an Order Form, (b) be responsible and liable for compliance with this Agreement by its users, employees, contractors, and agents (c) be responsible for the accuracy, quality and legality of all of its data, the means by which Client acquired such data, Client’s use of its data with the Flywheel Technology, and the interoperation of any third party applications with whichClient uses the Flywheel Technology, (d) prevent unauthorized access to or use of the Flywheel Technology, and notifyProvider promptly of any such unauthorized access or use, (e) use the Flywheel Technology only in accordance with thisAgreement and any relevant Order Form, and applicable laws and government regulations, including without limitation any applicable data privacy regulations such as the California Consumer Privacy Act (“CCPA”) and the European Union GeneralData Protection Regulation (“GDPR”), (f) comply with terms of service of any third party applications with which Client uses the Flywheel Technology, (g) obtain access and authorization for all data processing performed by Provider for Client, including the right to perform any third party integrations, (h) act as payer for and directly pay all infrastructure costs for data processing, compute, and other cloud services associated with this Agreement and use of Flywheel Technology, or reimburse such costs when paid by Provider on behalf of Client, (i) permit its name and logo to be displayed on Provider’s website and other marketing materials to identify Client as a user of the Flywheel Technology, and (h) upon Provider’s request and Client’s consent, participate in the development of a case study which Provider may use to publicly promote its product and/or services. To ensure compliance with the terms of this Agreement, Provider or its designated representative shall have the right to review and audit Client’s use of the Flywheel Technology, such review and audit to be conducted remotely and in such a manner as not to interfere unreasonably with Customer’s normal business activities.
6.4. Intellectual Property and Confidentiality. Client acknowledges and agrees that the Flywheel Technology, and any copies, updates, and/or derivative works of the Flywheel Technology, along with the right to make, have made, practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, and/or create works derivative of any of thefore going, exclusively belong to and are the property of Provider. Further, at the request of Provider, which may be made any time either before or after termination of this Agreement, Client shall promptly deliver to Provider a copy of allFlywheel Technology in source code form, as it exists at the time of such request, along with the source code and related documentation. The Flywheel Technology shall at all times remain Providers sole and exclusive property, and Provider retains the right to change or refine the Flywheel Technology at its discretion in service of Client or to further its business objectives. Client recognizes that Provider regards the Flywheel Technology and other Confidential Information as its proprietary information and as confidential trade secrets of great value. Client agrees not to provide or to otherwise make available in any form the Flywheel Technology, or any portion thereof, or any Confidential Information (defined below) ofProvider to any person other than as expressly permitted by this Agreement or any Order Form, without the prior written consent of Provider. Provider acknowledges and agrees that all of Client’s data is and shall remain the intellectual property of Client and nothing in this Agreement or any Order Form shall grant Provider any ownership right or interest in or to suchClient data or any portion thereof.
6.5. Aggregated Statistics and Application Monitoring. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Client’s and each user’s access and use of the Flywheel Technology and collect and compile meta-data, data and information related to Client’s and each user’s access and use of the Flywheel Technology that is and can be used byProvider for application monitoring, pricing, and Provider’s technology management purposes (“Application MonitoringData”). The same data may be aggregated and anonymized to compile statistical and performance information related to the provision and operation of the Flywheel Technology (“Aggregated Statistics”). Further, Client acknowledges that Provider may compile Aggregated Statistics based on Client’s data. Client agrees that Provider may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Client, any user or Client’sConfidential Information. Client and each user hereby grant to Provider a non-exclusive, royalty-free, perpetual, irrevocable, transferrable, worldwide license to access, revise, reproduce, distribute, and otherwise use and display the Client data and perform all acts with respect to the Client data as necessary for Provider to provide the Flywheel Technology to Client, and anon-exclusive, perpetual, irrevocable, transferrable, royalty-free, worldwide license to access, revise, reproduce, distribute,and use and display Client data incorporated within the Aggregated Statistics. Client acknowledges that, as between Clientand each user on the one hand, and Provider on the other hand, Provider owns all right, title, and interest, including allintellectual property rights therein, in and to the Flywheel Technology, Aggregated Statistics, and Application MonitoringData.
7.1. In connection with this Agreement and the Order Form(s), a Party (the "Disclosing Party") may disclose to the other Party(the "Receiving Party") information which is commercially sensitive, confidential, proprietary, and/or trade secret to theDisclosing Party and which is identified as confidential at the time of disclosure or which is reasonably apparent to be confidential based on the type of information and the circumstances of disclosure ("Confidential Information"). For a period of five (5) years after termination of this Agreement (or in the case of a trade secret for as long as such trade secret remains protectable under applicable laws), the Receiving Party shall not disclose any such Confidential Information to any third party other than its employees, contractors, and agents, and only on an as-needed basis. The terms and conditions of this Agreement and any applicable Order Forms, as well as any Flywheel Technology source code or architecture, shall be considered Confidential Information of both Parties and shall not be disclosed without the other Party’s written consent; however, high level information used to provide references, recommendations and case studies shall not be consideredConfidential Information of either Party. In no event shall Client use Provider’s Confidential Information to reverse engineer or otherwise develop products and services functionally equivalent to the products or services of Provider.
7.2. Notwithstanding the foregoing, the Disclosing Party’s Confidential Information shall not include information which: (i) is in the public domain at the time of its disclosure hereunder or thereafter becomes part of the public domain through no breach of this Agreement by the Receiving Party; (ii) was already known to the Receiving Party as of the time of its disclosure hereunder without an obligation of confidentiality, (iii) is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information; (iv) is subsequently learned by the Receiving Party from a third party that is not under a confidentiality obligation to the Disclosing Party with respect to such disclosure; (v) is authorized for disclosure by the Disclosing Party. Notwithstanding anything else herein, the Receiving Party may disclose theConfidential Information of the Disclosing Party to the extent that it is required pursuant to a duly authorized subpoena,court order or government authority, whereupon, as permitted by applicable law. The Receiving Party shall provide promptwritten notice to the Disclosing Party, prior to such disclosure, so that the Disclosing Party may seek a protective order orother appropriate remedy, and, if such remedy is not obtained, the Receiving Party shall disclose only that portion of theDisclosing Party’s Confidential Information which is legally required to be disclosed and shall seek confidential treatmentthereof.
7.3. The Receiving Party shall not retain any rights to any of the Disclosing Party’s Confidential Information and shall not usesaid Confidential Information for any purpose other than to exercise its rights or perform its obligations under thisAgreement. At the request of the Disclosing Party, the Receiving Party shall promptly destroy all Confidential Informationof the Disclosing Party that is then in the possession or control of the Receiving Party, provided that the Receiving Partymay retain, but not use, archived versions of such Confidential Information for a period of up to five (5) years followingtermination of this Agreement, which remain subject in all respects to the obligations of confidentiality and non-use set forthin this Agreement.
- Representations, Warranties and Warranty Exclusions.
8.1. Provider warrants that the Platform Enablement shall be provided in accordance with the applicable Order Form in a professional and workmanlike manner by personnel possessing the required skills and experience.
8.2. Each Party represents and warrants to the other that: (i) it shall comply with all relevant laws in performing its respectiveresponsibilities and exercising its rights under this Agreement; and (ii) it is authorized to enter this Agreement.
8.3. Each Party warrants to the other that it shall use commercially reasonable information technology security practices (the "ITSecurity Practices") in the performance of its responsibilities hereunder.
8.4. OTHER THAN THE WARRANTIES SPECIFICALLY MADE IN THIS AGREEMENT, THE LICENSEDTECHNOLOGIES AND SUPPORT SERVICES ARE AVAILABLE "AS-IS" AND "AS-AVAILABLE." PROVIDER ANDITS LICENSORS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING OUT OF CUSTOM ORTRADE USAGE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY IMPLIEDWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ITSLICENSED TECHNOLOGIES OR PERFORMANCE OF SUPPORT SERVICES HEREUNDER. EXCEPT FORWARRANTIES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, PROVIDER DOES NOT WARRANT THATTHE OPERATION OF THE LICENSED TECHNOLOGIES WILL BE UNINTERRUPTED OR ERROR FREE OR THATPROVIDER WILL CORRECT ALL DEFECTS. FURTHER, PROVIDER AND CLIENT ACKNOWLEDGE ANDAGREE THAT PROVIDER DOES NOT AND CANNOT GUARANTEE ANY SPECIFIC BUSINESS OUTCOME ORRESULT FROM CLIENT’S USE OF THE FLYWHEEL TECHNOLOGY UNDER THIS AGREEMENT. PROVIDERSHALL NOT BE DEEMED TO BE IN BREACH OF ANY REPRESENTATION OR WARRANTY TO THE EXTENTTHAT SUCH BREACH RESULTS FROM THE ACT OR OMISSION OF A THIRD PARTY.
- Limitation of Liability.
9.1. IN NO EVENT WILL PROVIDER BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDINGBREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANYINDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE,INCLUDING LOST REVENUES OR PROFITS; USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY ORRECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR ANY OTHER COMMERCIALOR ECONOMIC LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTYHAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTYASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED INTHIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT CLIENT’S LIABILITY FOR PAYMENT OFFEES OR INFRINGEMENT OR MISAPPROPRIATION OF PROVIDER’S INTELLECTUAL PROPERTY RIGHTSAND CONFIDENTIAL INFORMATION.
9.2. PROVIDER’S AGGREGATE LIABILITY FOR ANY AND ALL DIRECT DAMAGES SHALL IN NO EVENT EXCEEDTHE AMOUNT OF FEES CLIENT PAID TO PROVIDER IN THE PRIOR TWELVE (12) MONTH PERIOD UNDERTHE APPLICABLE ORDER FORM FOR THE CAUSE OF ACTION GIVING RISE TO SUCH DAMAGES,EXCLUDING ANY AMOUNTS PAID BY CLIENT ON A PASS-THROUGH BASIS.
10.1. Client shall indemnify, defend and hold harmless Provider, its affiliates, and its and their respective employees, principals,agents, successors and assigns (each, a “Provider Indemnitee”), from and against any and all costs, damages or losses(including reasonable attorneys’ fees and expenses) (collectively “Losses”) arising out of or resulting from a third partyclaim, demand, suit or administrative proceeding (each, a “Claim”) (i) that the Client’s data, or any use of the Client’s datawith the Flywheel Technology, Platform Enablement and/or Support Services in accordance with this Agreement, infringesor misappropriates such third party’s US intellectual property rights; or (ii) based on Client’s or any user’s (a) negligence orwillful misconduct, (b) use of the Flywheel Technology, Platform Enablement and/or Support Services in a manner notauthorized by this Agreement, (c) use of the Flywheel Technology, Platform Enablement and/or Support Services incombination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider inwriting, or (d) modifications to the Flywheel Technology, Platform Enablement and/or Support Services not made byProvider.
10.2.Provider will indemnify, defend and hold harmless Client, its employees, principals and agents (each, a “Client Indemnitee”), from and against any Losses arising out of or resulting from any Claim that the Flywheel Technology, when used in accordance with the terms of this Agreement and the applicable Order Form, infringes or misappropriates such third party’s US intellectual property right. This Section 10.2 will not apply to the extent that the alleged infringement or misappropriation arises from: (a) use of the Flywheel Technology, Platform Enablement and/or Support Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (b) modifications to the Flywheel Technology, Platform Enablement or Support Services; or (c) Client data. This section 10.2 sets forth any Client Indemnitee’s sole remedy and Provider’s sole liability and obligation for any actual, threatened, or alleged claims that the Flywheel Technology infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.
10.3. The party seeking indemnification under Section 10.1 or Section 10.2, as the case may be (the “Indemnified Party”), agrees to promptly notify the party against whom indemnification is sought (the “Indemnifying Party”) in writing followingreceipt of notice of any Claim in respect of which indemnity may be sought under such section, which notice shall assertsuch Claim and set forth in reasonable detail the basis for indemnification (such notice, the “Indemnification Notice”). Thefailure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to theextent such failure shall have adversely prejudiced the Indemnifying Party.
10.4. The Indemnifying Party shall be entitled to participate in the defense of any Claim and, subject to the Indemnifying Party’sdelivery of written notice thereof to the Indemnified Party within thirty (30) days after the Indemnifying Party’s receipt ofthe Indemnification Notice, or within such shorter period as may be required to timely respond to such Claim, shall beentitled to control and appoint lead counsel reasonably satisfactory to the Indemnified Party for such defense, in each case atits own expense. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall have the right to control such defense at the Indemnifying Party’s reasonable expense. The party not controlling such defense may participate therein at its own expense. Each Party shall cooperate in the defense of any Claim.
10.5. The Indemnified Party shall not agree to any settlement of a Claim without the prior written consent of the IndemnifyingParty. The Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of such Claim if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party or involvesan admission of fault or wrongdoing by an Indemnified Party.
- Term and Termination.
11.1. Term. This Agreement shall become effective on the Effective Date and shall remain effective until terminated in accordance with this Section (the “Term”). Each Order Form shall become effective on the effective date set forth in suchOrder Form (which shall be the same date as the Effective Date if no date is specified) and shall remain effective for the term set forth therein (the “Initial Order Term”). Each Order Form shall extend automatically for successive terms in accordance with the Order Form (each successive term, an “Extension Order Term”), unless either Party provides the otherParty with written notice of nonrenewal at least sixty (60) days prior to the expiration of the Initial Term or the then-currentExtension Term. This Agreement may be terminated for any reason upon written notice by any Party at such time as noOrder Form(s) are in effect hereunder. Termination of an Order Form shall not affect this Agreement.
11.2.1. In the event that the other Party has breached any of the warranties or material provisions contained in an Order Formor this Agreement (including Client’s obligation to pay Fees when due) and failed to cure such breach within thirty(30) days following receipt of written notice thereof by the non-breaching Party (which notice shall set forth adescription of the breach), the non-breaching Party, in addition and supplementary to any other rights and remediesthat may be available to such non-breaching Party, will be entitled to terminate this Agreement or such Order Formby providing written notice of such termination to the Party committing the breach. Without limiting the foregoing, inthe event of Provider’s termination of this Agreement and/or any Order Form for Client’s breach, the due dates of alloutstanding invoices will automatically accelerate so they become due and payable on the effective date of suchtermination.
11.2.2. In the event that either Party shall: (i) cease conducting business in the normal course; (ii) become insolvent; (iii)admit in writing its inability to meet its debts generally as they become due; (iv) make a general assignment for the benefit of creditors; (v) suffer or permit the appointment of a receiver, trustee, liquidator or conservator for its business or assets; (vi) avail itself of, or become subject to, any proceeding under the Federal Bankruptcy Act or any other statute of any state relating to insolvency or the protection of rights of creditors; or (vii) proceedings are commenced for the dissolution, winding-up or liquidation of either Party, then, upon written notice of the other Party, this Agreement and all Order Forms then in effect, shall terminate immediately.
11.3. Effect of Termination
11.3.1. Upon expiration or earlier termination of this Agreement and/or any Order Form, Client shall immediatelydiscontinue all use of the Flywheel Technology and Client shall pay Provider all Fees accrued through the effectivedate of termination under each terminated Order Form within thirty (30) days of Provider’s invoice therefor. Paymentof this final invoice shall not bar any remedy, legal equitable, or otherwise available to Provider, and no expiration ortermination will affect Client obligation to pay all Fees that may have become due before such expiration ortermination, or entitle Client to any refund.
11.3.2. Client agrees to destroy the Flywheel Technology referenced in a terminated Order Form and any copies or derivativeworks created thereof, and Client will notify Provider of its successful destruction within fourteen (14) days oftermination.
12.1. Legal Notices. All notices, requests, demands, claims, and other communications hereunder will be in writing and shall bedeemed duly given (a) when delivered personally to the recipient, upon receipt, (b) when sent by electronic mail orfacsimile, on the date of transmission to such recipient, if received during normal business hours and, if not, the nextbusiness day after transmission, (c) one (1) business day after being sent to the recipient by reputable overnight courierservice (charges prepaid), or (d) three (3) business days after being mailed and addressed to the recipient as set forth on thesignature page hereto. Any party may change the address to which notices, requests, demands, claims, and othercommunications hereunder are to be delivered by giving the other party notice in the manner herein set forth. Notices forClient should be sent to the Client Legal Address listed in an Order Form. Notices for Provider should be sent to 76Summit Road, Riverside, CT 06878, ATTN: Legal, with a copy to email@example.com.
12.2. Headings. The section headings to this Agreement do not form a part of it, but are for convenience only and shall notaffect or limit the meaning of the paragraphs.
12.3. Force Majeure. Except with regard to Client’s obligation to timely pay all Fees, no Party to this Agreement shall be liableto the other by reason of any failure or delay in performance of this Agreement in accordance with its terms if such failureor delay arises out of causes beyond the reasonable control and without the fault of such Party. Such causes may include,but are not limited to: acts of God or of the public enemy, acts of civil or military authority, fires, floods, epidemics,pandemics, quarantine restrictions, strikes, freight embargoes, widespread unavailability of energy resources, riots or war,or any unusually severe weather conditions or similar causes beyond the reasonable control and without the fault of anysuch Party. In the event of any force majeure occurrence, the disabled Party shall promptly and in writing advise the otherParty if it is unable to perform due to a force majeure event, the expected duration of such inability to perform, and of anydevelopments (or changes therein) that appear likely to affect the ability of the disabled Party to perform any of itsobligations in whole or in part.
12.4. Waivers. No waiver by either Party of any breach or default hereunder by the other shall operate as a waiver of any otherbreach or default or of a similar breach or default on a future occasion. No waiver of any term or condition hereof by eitherParty shall be effective unless the same shall be in writing and signed by both Parties.
12.5. Severability. In the event that any provision of this Agreement (other than a provision which goes to the essence of theconsideration for this Agreement) is declared invalid, unenforceable or void, to any extent, by a court of competentjurisdiction, the remainder of this Agreement and the application thereof shall not be affected thereby, but rather shall beenforced to the greatest extent permitted by law.
12.6. Injunctive Relief. In the event of the breach or a threatened breach by a Party of any of the provisions of Sections 4, 5, 6 or7 of this Agreement, the non-breaching Party, in addition and supplementary to any other rights and remedies that may beavailable to such Party, will be entitled to seek specific performance and/or injunctive or other equitable relief against the breach or threatened breach from a court of competent jurisdiction in order to enforce or prevent any violations of theprovisions hereof (without posting a bond or other security).
12.7. Governing Law. This Agreement and the Order Form(s) will be governed by and construed in accordance with the laws ofthe State of Delaware without application of its choice of law provisions.
12.8. Dispute Resolution; Arbitration. Except with respect to disputes regarding intellectual property rights confidentiality, and payment of Fees, the Parties will first attempt in good faith to promptly resolve any dispute arising under this Agreement by good faith negotiation by senior executives. If such dispute has not been resolved within thirty (30) days of a Party’s initiation of negotiations, the dispute shall be submitted at the request of such Party to final and binding arbitration before a single arbitrator. Such arbitration shall be held in Wilmington, Delaware, and in accordance with the then current rules of the American Arbitration Association applicable to commercial disputes. The arbitrator may grant injunctive or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the Parties.Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction.
12.9. Export Regulations. Client understands that Provider is subject to regulation by agencies of the U.S. Government, including the U.S. Departments of Commerce and State, which prohibit export or diversion of certain technical products to certain countries. Client warrants that it will comply in all respect with the export and re-export restrictions applicable to the Flywheel Technology and Platform Enablement and Support Services. Client agrees to indemnify and hold Provider harmless from any loss, damages, liability or expenses incurred by Provider as a result of Client’s failure to comply with any export regulations or restrictions.
12.10. Modification and Waiver. This Agreement and the Order Form(s) may not be modified except as mutually agreed to in writing, signed by an authorized representative of each Party.
12.11. Entire Agreement. This Agreement and each Order Form entered into hereunder shall supersede all prior agreements, communications, representations and understandings, either oral or written, between Provider and Client with respect to the subject matter contained herein. All terms and conditions on any Client-issued purchase order, order acknowledgment or other documents in connection with the reporting services herein shall be deemed deleted and of no force or effect.
12.12. Assignment. If Client is acquired by another entity, person or business, whether by merger, consolidation, reorganization, purchase of assets, or otherwise (a “Change of Control”), the rights granted to Client hereunder will extend only to the business of Client operated prior to the Change of Control, and the Flywheel Technology may not be used with respect to the business of the acquirer entity or business without the prior written consent of Provider, which consent may be withheld in its sole discretion. Any purported assignment in violation of this Agreement is null and void.
12.13. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile and electronic mail (including .PDF format and any electronic signature complying with the U.S. federal ESIGN Act of 2000).
12.14. Construction. This Agreement shall be construed as if drafted jointly by the Parties and no presumption shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
12.15. Relationship of Parties. Provider is an independent contractor of Client, and Client hereby acknowledges that Provider may engage subcontractors to assist with its performance hereunder. Nothing herein shall be construed as creating a joint venture, partnership or similar relationship.
12.16. Survival. Notwithstanding anything herein to the contrary, all terms logically construed to survive the term of thisAgreement shall survive, including confidentiality provisions.
12.17. Successors and Third Party Beneficiaries. This Agreement shall inure to the benefit of Provider and Client and any successors or assigns of Provider and Client. Except with respect to Provider Indemnitees and Client Indemnitees, no other third party shall have any rights hereunder.