Welcome to ChangeSync!
TERMS AND CONDITIONS
1. DEFINITIONS. Certain capitalized terms, not otherwise defined herein, have the following meanings:
1.1 “Aggregated Data” means any non-personally identifiable, technical, statistical or analytical data gathered or generated directly by use of the Application Service, and which Company collects, gathers and aggregates periodically as part of its services and the use of the Application Client and does not include identifiable Customer Content.
1.2 “Applicable Privacy and Data Protection Laws and Regulations” means all laws and regulations including, but not limited to, the laws and regulations of the European Union, the European Economic Area and its member states, Switzerland, the United Kingdom, and the United States, including federal as well as state laws in California and other states, applicable to the Processing of Personal Information under the Agreement.
1.3 “Application Client” means any installable software client through which Customer may integrate its offering with the Application Service in accordance with the terms of this Agreement.
1.4 “Application Documentation” means text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Application Service (“functionality”) that is designed to facilitate use of the Application Service and that Company provides to Customer under this Agreement.
1.5 “Application IP” means the Application Service, the Application Documentation, and all intellectual property that Company provides to Customer (and/or any applicable Authorized Users) in connection with the foregoing.
1.6 “Application Service” means the technology and application software set forth and described on Schedule A.
1.7 “Authorized User” means each Customer’s User or Customer’s Client for which Customer grants access to use the Application Service through a Web Interface as an Authorized User of the Application Service.
1.8 “Confidential Information” means all written or oral information, disclosed by either Party (“disclosing Party”) to the other, related to the disclosing Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. Without limiting the foregoing, for purposes of this Agreement, the Aggregated Data and Application Documentation are Confidential Information of Company.
1.9 “Customer Content” means the data, information, records, media and other content provided, uploaded, transmitted, inputted, edited, authored, generated, managed or otherwise submitted by Customer and/or any Authorized Users through the Application Service.
1.10 “Customer’s Clients” means those clients of Customer, to which Customer grants access to use the Application Service through a Web Interface, who accesses or uses the Application Service through the Application Client under the rights granted to Customer herein and pursuant to an agreement between Customer and Customer’s clients.
1.11 “Customer’s User” means any individual employee, agent, or contractor of Customer, to which Customer grants access to use the Application Service through a Web Interface, who accesses or uses the Application Service through the Application Client under the rights granted to Customer under this Agreement.
1.12 “Personal Information” will have the meaning of that term or like terms set forth in the Privacy and Content Security Laws.
1.13 “Privacy and Content Security Laws” means all domestic and international privacy and data protection laws, rules, regulations, best practices and regulatory guidance relating to privacy, data security, cybersecurity and Personal Information.
1.14 “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.15 “Web Interface” means the website or websites through which Authorized Users may access the Application Service in accordance with the terms of this Agreement.
2. ACCESS AND USE.
2.1 Provision of Access. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to access the features and functions of the Application Service during the Term, solely for use by Authorized Users and solely for the benefit of, or in relation to, the operation of Customer’s business. Company will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Application Service (the “Access Protocols”) and the Application Documentation. Customer will be responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User which, if undertaken by Customer, would constitute a breach of this Agreement, will be deemed a breach of this Agreement by Customer. Customer will make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized User’s use of the Application Service and will cause Authorized Users to comply with such provisions.
2.2 Application Client. Except as otherwise set forth in this Section 2.2, the Application Client will be deemed part of the Application Service for purposes of this Agreement, subject to the disclaimers set forth herein. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right and license, during the Term, to utilize the Application Client solely for purposes of accessing and utilizing the features and functions of the Application Service. Customer may distribute the Application Client solely as embedded with Customer’s own applications to Authorized Users for use on devices owned or controlled by Authorized Users and supported by the Application Client and Application Service.
2.3 Application Documentation License. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right and license to use the Application Documentation during the Term for Customer’s internal purposes in connection with its use of the Application Service under this Agreement.
2.4 Usage Restrictions. Customer will not, and will not permit any Authorized Users or any third party to: (i) copy or duplicate any of the Application IP; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of any of the Application IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Application IP, or attempt to do any of the foregoing, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify, alter, tamper with or repair any of the Application IP, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Company in each instance; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Application IP; (v) authorize or permit use of the Application IP by persons other than Authorized Users; (vi) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Application IP; or (vii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Sections 2.1, 2.2 and 2.3. Customer will ensure that its use of any of the Application IP complies with all applicable laws, statutes, regulations and rules including, without limitation, Privacy and Content Security Laws and any export and import requirements, and Customer will not use or compile any of the Application IP for the purpose of any illegal activities. If Company has notified Customer of Company’s obligations to any third party, Customer will ensure that its use of any of the Application IP complies with those obligations. When using the Application Service, Customer will further comply with the Application Documentation, any other documentation or written requirements provided by Company to Customer, and any best practices and industry specifications. Customer will use any data warehouse functionality provided as part of the Application Service to store only that Customer Content which is necessary to take full advantage of the Application Service. Customer acknowledges that Company may restrict data transmission if data transmitted does not reflect the most efficient manner in which to store or use the Application Service, or if data transmitted is stored for a purpose other than utilization of the Application Service.
2.5 Retained Rights; Ownership. As between the Parties, except for any rights expressly granted in this Agreement, Company and its licensors retain all right, title and interest in and to the Application IP and its components and any data provided by Company through the Application Service, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Company retains the right to use the foregoing for any purpose in Company’s sole discretion. As between the Parties, Company acknowledges and agrees that Customer retains all right, title, and interest in and to all Customer Content. Customer hereby grants to Company a non-exclusive, worldwide, royalty-free, irrevocable, fully sublicensable, right and license to use, copy, manipulate and render such Customer Content solely to provide the Application Service.
2.6 Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Customer’s and any Authorized Users’ access to all or any portion of the Application IP if: (i) Company reasonably determines that (a) there is a threat to or attack on any of the Application IP; (b) Customer’s or any Authorized User’s use of the Application IP disrupts or poses a security risk to the Application IP or to any other customer or vendor of Company; (c) Customer or any Authorized User is using the Application IP for fraudulent or illegal activities; (d) subject to applicable law, Customer 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; or (e) Company’s provision of the Application Service to Customer or any Authorized User is prohibited by applicable law; or (ii) any vendor of Company has suspended or terminated Company’s access to or use of any third party services or products required to enable Customer to access the Application IP (each such suspension under this Section 2.6, a “Service Suspension”). Company will make commercially reasonable efforts to provide notice of any Service Suspension to Customer (which would be by notice sent to Company’s registered email address) and to provide updates regarding resumption of access to the Application IP following any Service Suspension. Company will use commercially reasonable efforts to resume providing access to the Application Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. COMPANY WILL HAVE NO LIABILITY FOR ANY DAMAGES, LIABILITIES, LOSSES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, LOSS OF GOODWILL OR LOSS OF PROFITS) OR ANY OTHER CONSEQUENCES THAT CUSTOMER OR ANY AUTHORIZED END USER MAY INCUR AS A RESULT OF, IN CONNECTION WITH, ARISING UNDER, OR RELATING TO A SERVICE SUSPENSION. Company does not include any limits for Customer’s usage of storage and bandwidth in connection with the Application Service, but that commitment is subject to (i) Customer complying with the terms of this Agreement; and (ii) Customer ensuring that its usage does not infringe the intellectual property rights of any third party.
2.7 Support. Company will provide a one-time virtual system overview training. Thereafter, support issues will be addressed as necessary by phone or email, during Company’s normal business hours, at no charge to Customer. Company will have no other support obligations to Customer or any Authorized User.
3. CUSTOMER OBLIGATIONS.
3.1 Authorized User Access to Services. Subject to the terms and conditions of this Agreement, Customer may permit any Authorized User to access and use the features and functions of the Application Service.
3.2 Assistance to Company. Customer will, at its own expense, provide assistance to Company including, without limitation, by means of access to, and use of, Customer facilities and Customer equipment, as well as by assistance from Customer personnel, to the extent any of the foregoing may be reasonably necessary to enable Company to perform its obligations hereunder.
3.4 Third-Party Products. Customer acknowledges and agrees that third party products (the “Third Party Products”), if any, which are provided with or incorporated as part of the Application Services (and/or the Application IP) are additionally subject to the applicable flow through provisions to the extent set forth on Schedule C.
3.5 Customer Content. Company acknowledges that Customer owns or otherwise has rights to all Customer Content that it provides, or otherwise permits access, to Company through the Application Service and Customer grants to Company a non-exclusive, royalty-free license during the Term to use such Customer Content solely in connection with the provision of the Application Service to Customer. Customer represents and warrants that it has sufficient rights to transmit or otherwise permit access to any such Customer Content to Company, including any data or information contained therein and that, to the extent Customer shares or otherwise permits Company or the Application Service to make use of any credentials to obtain such data or information, that such sharing of credentials will not violate the rights of, or any contractual obligations with, any third party. Customer acknowledges that Company may, in its discretion, archive Customer Content that is 2 or more years old such that this archived Customer Content is not readily accessible through the Application Service; provided, however, that before Company archives any Customer Content, Company shall have given Customer at least 30 days’ prior notice of Company’s intent to archive and Customer either has not provided a written objection or Customer has objected and Customer and Company have not agreed upon a later date for the archiving.
3.6 Aggregated Data. As between Company and Customer, all right, title and interest in the Aggregated Data and all intellectual property rights therein, belong to and are retained solely by Company. Customer acknowledges that Company will be compiling Aggregated Data based on Customer Content input into the Application Service and Customer agrees that notwithstanding anything contained herein to the contrary, Company (its affiliates, licensors, partners and designated agents) may: (i) make such Aggregated Data publicly available; (ii) use the Aggregated Data for its own purposes including, without limitation, to monitor and improve its products and services or to provide customized services or technologies to customers; and (iii) use the Aggregated Data to the extent and in a manner permitted by applicable law or regulation including, without limitation for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
4. FEES AND EXPENSES; PAYMENTS.
4.1 Fees. In consideration for the rights granted to Customer and the performance of Company’s obligations under this Agreement, Customer will pay to Company, without offset or deduction, certain fees, in such amounts as set forth in Schedule A (the “Fees”). Unless otherwise provided in the Schedule, all Fees will be due and payable within 30 calendar days after Company issues an invoice with respect thereto.
4.2 Customer Operating Expenses. Customer will bear all expenses incurred in performance of its obligations hereunder including, without limitation, through use by Customer and/or any Authorized User of the Application Service, and/or through provision of support to Authorized Users with respect to use of the Application Service. 4.3 Taxes. Customer will be responsible for payment of all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Company’s income), and any related penalties and interest for the grant of license rights hereunder or the delivery of related services. Customer will make all required payments to Company free and clear of, and without reduction for, any withholding taxes. Any taxes imposed on payments to Company will be Customer’s sole responsibility, and Customer will, upon Company’s request, provide Company with official receipts issued by the appropriate taxing authorities, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.
4.4 Late Payments; Interest. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid in full.
5. TREATMENT OF CONFIDENTIAL INFORMATION.
5.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. 5.2 Mutual Confidentiality Obligations. Each Party agrees that it will: (i) use the disclosing Party’s Confidential Information only in connection with this Agreement; (ii) not reproduce the disclosing Party’s Confidential Information and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) not create any derivative work from the disclosing Party’s Confidential Information; (iv) restrict access to the Confidential Information of the disclosing Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and are bound to treat such information in accordance with the terms of this Agreement; and (v) return or destroy, pursuant to Section 8.3, all of the disclosing Party’s Confidential Information that is in its possession upon termination or expiration of this Agreement.
5.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to Confidential Information that is: (i) publicly available or in the public domain at the time disclosed; (ii) or becomes publicly available or enters the public domain through no fault of the recipient; (iii) rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) independently developed by the recipient without access to or use of the disclosing Party’s Confidential Information; or (vi) approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose the disclosing Party’s Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given notice to the disclosing Party and made a reasonable effort to obtain a protective order; or (y) to establish or enforce a Party’s rights under this Agreement.
6. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) the execution and performance of this Agreement will be in compliance with and not in conflict with or violation of any provision of any law applicable to such Party including, without limitation, applicable Privacy and Content Security Laws; and (iii) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
7. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.
7.1 Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION IP, INCLUDING THE APPLICATION SERVICE, THE APPLICATION DOCUMENTATION, AND ALL SERVICES PERFORMED BY COMPANY ARE PROVIDED “AS IS,” AND COMPANY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. COMPANY, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, DOES NOT WARRANT THAT THE APPLICATION IP, INCLUDING THE APPLICATION SERVICE, THE APPLICATION DOCUMENTATION, OR ANY SERVICES PROVIDED BY COMPANY, WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
7.2 Exclusions of Remedies; Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL COMPANY OR ITS LICENSORS AND SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF COMPANY TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO COMPANY BY CUSTOMER. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.3 Essential Basis of the Agreement. Customer acknowledges and agrees that the disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
8. TERM AND TERMINATION.
8.1 Term. This Agreement may be terminated prior to the expiration of the Term in accordance with this Section 8.
8.2 Termination. This Agreement may be terminated: (i) by either Party on 30 days’ notice to the other Party; (ii) by either Party by providing a notice to the other Party if the notified Party has failed to perform any material obligation and has not fully cured the failure within 10 days after it has been given notice specifying the breach or, if the breach is incapable of cure within 10 days, the breaching Party has not taken substantial steps toward a cure within that 10-day period and continued diligently to work toward a cure; (iii) by Company if Customer fails to pay any amounts due hereunder and fails to cure the non-payment within 7 days from Company’s notice (which can be via email) and (iv) immediately upon notice (x) by the non-breaching Party if the other Party breaches Section 5 or (y) by Company if Customer breaches Section 2.4.
8.3 Effect of Termination. Upon expiration or any termination of this Agreement, Customer will immediately discontinue all use of the Application Service and the Application Documentation and, at Company’s option, destroy the Application Documentation, and promptly pay to Company all amounts due and payable hereunder. Each Party will: delete any of the other Party’s Confidential Information from computer storage or any other media including, but not limited to, online and off-line libraries; return to the other Party or, at the other Party’s option, destroy, all copies of the other Party’s Confidential Information and Personal Information then in its possession. Customer will be entitled to access and retain all Customer Content.
8.4 Survival. The provisions of Sections 1, 2.5, 3.4, 3.6, 4.3, 5, 7, 8.3, 8.4 and 9 will survive the termination of this Agreement.
9.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties with respect to its subject matter and supersedes all prior oral and written agreements, discussions, and understandings between the Parties with respect to the subject matter. Neither Party will be bound by any conditions, inducements or representations relating to this Agreement other than as expressly set forth herein.
9.2 Independent Contractors. In making and performing this Agreement, Customer and Company act and will act at all times as independent contractors and nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.
9.3 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by certified mail, postage prepaid, and addressed, if to Customer, to the address set forth on the Cover Page, and if to Company, as follows: If to Company: ChangeSync, LLC 1733 N. Greenfield Rd., Ste. 101 Mesa, Arizona 85205 Attn: Chief Executive Officer or addressed to such other address as a Party may have given by notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by email, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. If a Party delivers any notice hereunder by email in accordance with the preceding sentence, that Party will promptly thereafter send a duplicate of the notice in writing by certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by notice to the sender.
9.4 Amendments; Modifications. This Agreement may not be amended or modified except in a writing signed by authorized representatives of both Parties.
9.5 Assignment; Delegation. Neither Party will assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other Party and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. Notwithstanding the foregoing, Company may assign this Agreement, without consent, in connection with a merger, sale, transfer or other disposition of all or substantially all of its stock, membership interests or assets.
9.6 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing in this Agreement, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
9.7 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, that provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
9.8 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly signed by the Party granting the waiver. Any waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
9.9 Force Majeure. Except with respect to payment obligations, if a Party is prevented or delayed in performance of its obligations under this Agreement as a result of circumstances beyond such Party’s reasonable control including, without limitation, war, riot, fires, floods, epidemics, terrorist act or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than 90 days, the other Party may terminate this Agreement upon 30 days’ notice.
9.10 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the state of Arizona, without regard to its conflicts of law principles, or to the United Nations Convention on the International Sale of Goods. For purposes of all claims brought under, arising from or related to this Agreement, except as provided in Section 9.15, each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona.
9.11 Publicity. Company has the right to reference and use Customer’s name and trademarks and disclose the nature of the services provided hereunder in Company’s business development and marketing efforts including, without limitation, on Company’s website.
9.12 U.S. Government End-Users. Each of the Application Documentation and the software components that constitute the Application Service is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Application Service and the Application Documentation with only those rights set forth therein.
9.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which when taken together will constitute one Agreement. Counterparts may be delivered via email (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
9.14 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
9.15 Equitable Relief. The Parties acknowledge and agree that a breach by Customer of Section 2.6, or a breach by either Party of Section 5, will cause irreparable harm to the nonbreaching Party for which money damages will be an inadequate remedy. The Parties therefore agree that in the event of a breach or threatened breach of Section 2.6 or Section 5, the nonbreaching Party will be entitled to equitable relief from any court of competent jurisdiction, restraining such breach or threatened breach, without the necessity of proving irreparable harm or posting a bond. SCHEDULE A DESCRIPTION AND SPECIFICATION OF APPLICATION SERVICE 1. Description of the Application Service ChangeSync is a SaaS, cloud-based Change Management platform. 2. Specification & Deliverables Authorized Users will be provided real-time access to functionality of the Application Service as allowed based on their configurable security and preference of future functionality uptake. 3. Number of Authorized Users [To be inserted.] 4. Payment Terms [To be inserted.] Customer will pay to Company the following fees:
DESCRIPTION AND SPECIFICATION OF APPLICATION SERVICE
1. Description of the Application Service ChangeSync is a SaaS, cloud-based Change Management platform.
2. Specification & Deliverables Authorized Users will be provided real-time access to functionality of the Application Service as allowed based on their configurable security and preference of future functionality uptake.