Terms of Service
These General Terms and Service (“General Terms and Service”) are between Company and the Customer covering business transactions which Company and Customer may enter into from time to time and are incorporated into the Agreement by reference. It should be read together with each Order Form and/or Statement of Work, which are incorporated into this Agreement by reference.
NOW, THEREFORE, the parties hereto agree as follows:
1.1. “Agreement” has the meaning given such term in the signature page of this Agreement.
1.2. “Authorized Users” means those employees and agents of Customer (for the avoidance of doubt, Customer includes its affiliates and subsidiaries), who are authorized by Customer to use the Subscription Services and Documentation for Customer’s internal business purposes.
1.3. “Confidential Information” means all information relating to the business or affairs of a disclosing party that is not generally known to the public, including but not limited to, technical or non-technical data, software (whether in object or source code form), formulae, tools, patterns, plans, compilations, programs, devices, methods, techniques, drawings, processes, financial data, pricing information, lists of actual or potential customers or suppliers, marketing plans and business strategies, and also means and includes the terms and conditions of this Agreement (but not its existence). Confidential Information of Company (as a disclosing party) also includes and means the Software’s source and object code. Further, Confidential Information includes information that a reasonable person would determine to be proprietary or confidential when taking into consideration its nature and the circumstances under which it is disclosed. Confidential Information will not include (i) information that becomes generally available to the public other than as a result of unauthorized disclosure by the recipient or persons to whom the recipient has made such information available, and (ii) information available to the recipient on a non-confidential basis prior to receipt from the disclosing party, or received from a third party lawfully entitled to disclose the information and who does not have any confidence or secrecy obligations to the disclosing party. A party may disclose information it is required to disclosed to the court or government agency or in connection with judicial proceedings between the parties, provided, however, that prior to any disclosure pursuant to this sentence, the recipient will give the disclosing party advance notice of any proposed disclosure and a reasonable opportunity to obtain a protective order or to otherwise seek protection of the information and will cooperate with the other party to help maintain the confidentiality of the information.
1.4. “Customer” is defined on the signature page to this Agreement.
1.5. “Customer Data” means any Customer information entered the Subscription Services provided by the Customer or inputted by the Customer, Company on the Customer’s behalf for the purpose of using the Subscription Services, and/or Customer’s Authorized Users. “Data Center” means the Company facility or third-party facilities at which the Software is located.
1.6. “Documentation” means user documentation made available to Customer by Company online via www.troysecurerx.com/support or such other web address notified by Company to Customer from time to time that sets out a description of the Subscription Services and user instructions for the Subscription Services, for use with the Subscription Services, as periodically updated.
1.7. “Material Deficiencies” means any failure of the Subscription Services to perform, as to all substantial operational features, in accordance with the Documentation and impairs Customer’s ability to effectively use the Software or Subscription Services.
1.8. “Minimum System Configuration” means the minimum computer hardware and software components, peripherals and configuration necessary for the proper operation of the Subscription Services, all as specified by Company.
1.9. “Order Form” means a document provided by Company or Customer and signed by each party that describes Company’s service offering. The terms and conditions of this Agreement will govern Company’s service offering provision described in the Order Form.
1.10. “Professional Services” means the training, consulting, development and other professional services provided by Company as identified on a Statement of Work, but does not include the Subscription Services
1.11. “Software” means the online software applications provided by Company as part of the Subscription Services whose functionality is described in the Order Form and Documentation.
1.12. “Statement of Work” means a document provided by either party and signed by the other party that describes the Professional Services to be provided by Company to Customer. The terms and conditions of this Agreement will govern Company’s performance of the Professional Services described in the Statement of Work.
1.13. “Subscription Fees” means the subscription fees payable by Customer to Company for the Subscriptions Services, as set out in the applicable Order Form.
1.14. “Subscription Services” or “Services” means the hosted secure printing solutions, along with all infrastructure and software related thereto, identified in an Order Form, and any modifications periodically made by Company, but does not include the Professional Services.
1.15. “Support Service Policy” means Company’s policy for providing support and Service Level Agreement in relation to the Subscription Services made available to Customer by Company online via [www.TroySecureRx.com/Support] or such other website address to which the Customer may be directed from time to time, as periodically updated.
1.16. “Term” means the period of time during which the parties agree that Company will provide Customer with the Subscription Services as set out in the applicable Order Form or Professional Services as set out in the applicable Statement of Work. Unless modified in an applicable Order Form or Statement of Work, the initial Term (the “Initial Term”) identified in an Order Form or Statement of Work shall automatically renew, at then current rates, for additional one (1) year periods (each a “Renewal Term” and, collectively with the Initial Term, the “Term”); provided, however, the Agreement may be cancelled by (i) either party on any anniversary of the Effective Date with a minimum of ninety (90) days prior written notice by the terminating party, or (ii) by Company with or without cause with a minimum of thirty (30) days prior written notice to the Customer.
1.17. “Work Product” means object code, source code, flow charts, documentation, information, reports, test results, findings, and any works and other materials developed by Company in providing the Professional Services to Customer.
2. Order Submission.
Any Order Form or Statement of Work shall be mutually agreed upon by the parties and upon execution shall be deemed a part of this Agreement, and all obligations of the parties under this Agreement shall fully apply to all matters set forth in any Order Form or Statement of Work. In the event of conflict between the terms of this Agreement and the terms of any Order Form or Statement of Work, the terms of this Agreement shall control.
3. Billing and Payment.
3.1. Billing. Unless otherwise specified on an Order Form, recurring Subscription Fees are billed [annually] in advance. Billing will commence when Customer is ready to use the Subscription Services but in no event prior to the agreed to commencement date set forth in the applicable Order Form.
3.2. Payment. Payment of undisputed amounts is due in accordance with the invoice, with set off and deduction. Payment of undisputed amounts is due within thirty (30) days of invoice receipt by Customer.
3.3. Suspension of Subscription Services. If the undisputed portion of Company’s invoice is not paid within thirty (30) days days of the date of Customer’s receipt of the invoice, after providing thirty (30) business days written notice, Company may suspend the Subscription Services immediately until all undisputed amounts owed have been paid. If Company suspends the Subscription Services, Company will promptly restore the Subscription Services upon Customer’s payment of such undisputed portion of Company’s invoice.
3.4. Disputed Invoices. Customer may dispute an invoice or any portion thereof.
3.5. Taxes and Fees. Prices for Subscription Fees or Professional Fees on an Order Form or Statement of Work are exclusive of applicable sales or use taxes, which, if applicable, shall be paid by Customer but shall not include any tax on Company’s income. Company will remit any sales or use taxes collected on Customer’s behalf to the appropriate government agency.
3.6. Price Increases. The pricing in this Agreement is firm for the Initial Term of this Agreement. Company may elect to change pricing for Subscription Services for any Renewal Term.
3.7. Professional Services Fees. Professional Services shall be billed at the rates specified in the applicable Statement of Work. Unless the parties agree otherwise, such services shall be provided on a time and materials basis at Company’s then current standard professional services rates.
4. Access to Subscription Services
4.1. In consideration of Customer’s payment of the applicable Subscription Fees as set forth in the applicable Order Form, and the execution of this Agreement by both parties, Company grants Customer (for the avoidance of doubt, the definition of Customer includes its subsidiaries and affiliates) a non-exclusive, non-revocable during the Term (other than as expressly provided herein), non-royalty bearing and fully paid up (other than the Subscription Fee), worldwide, non-sublicensable (other than to Customer’s subsidiaries and affiliates), non-transferable (other than to Customer’s subsidiaries and affiliates), and limited right to access, use, and receive the Subscription Services, Software, and the Documentation during the Term solely for the Customer’s internal business operations.
4.2. Customer must have a high speed Internet connection, and hardware and software that is compatible with the Subscription Services, as set out in the [Documentation]. Company has no responsibility to supply Customer with the connection, hardware or software required by the Documentation.
5. Conditions of Use.
Customer shall use commercially reasonable endeavors to prevent any unauthorized access to, or use of, the Subscription Services, Software and/or the Documentation and, in the event Customer becomes aware of any such unauthorized access or use, promptly notify Company. Customer will not:
5.1. Transfer this Agreement or any rights granted to Customer hereunder to use the Subscription Services to any other person or entity other than its affiliates and subsidiaries;
5.2. Sell, re-license (other than to its affiliates and subsidiaries), rent, lease, or commercially exploit (other than for Customer’s internal business purposes) the Subscription Services, except to Authorized Users;
5.3. Use the Subscription Services in the operation of a service bureau or in any manner that involves the processing of third party data (other than for Customer’s internal business purposes, which is acceptable), except as permitted by Company;
5.4. Make the Subscription Services available to anyone who is not an Authorized User or authorized under the license grant in Section 4 (Access to Subscription Services);
5.5. Attempt to copy, modify, or duplicate all or any portion of the Subscription Services, Software and/or Documentation (as applicable) in any form or media or by any means to sell services to third parties except as permitted by this Agreement;
5.6. Attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the Subscription Services, Software and/or Documentation to sell services to third parties;
5.7. Copy any proprietary graphic in, or reverse engineer the Software;
5.8. Access the Subscription Services and Documentation if Customer is an employee of an Company competitor that offers the same or similar services;
5.9. Use the Subscription Services in a way that violates any criminal or civil law;
5.10. Load test the Subscription Services in order to test scalability; or,
5.11. Access, store, distribute or transmit any viruses, or any material during the course of its use of the Subscription Services that:
5.11.1. Is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
5.11.2. Facilitates illegal activity;
5.11.3. Depicts sexually explicit images;
5.11.4. Promotes unlawful violence; or
5.11.5. Is discriminatory based on race, gender, color, religious belief, sexual orientation, or disability.
6. Customer Data and Intellectual Property
Customer must provide all data for use in the Subscription Services, and Company is not obligated to modify or add to the Customer Data in any way. Customer is solely responsible for the content and accuracy of the Customer Data.
6.1. Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data other than any modifications or changes made by Company. This Agreement does not grant Company any rights to, or in, Customer’s patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), trade secrets, Confidential Information and/or any other rights or licenses with respect to the Customer Data or any Customer intellectual property rights.
6.2. Company agrees to keep Customer Data confidential in accordance with Section 13 (Confidential Information) of this Agreement.
6.3. Company agrees to use the Customer Data only as necessary in order to carry out its obligations under this Agreement, and for no other purpose, with the exception that Company may make use of the Customer Data as follows:
6.3.1. To observe and report back to Customer on Customer’s usage of the Subscription Services, and make recommendations for improved usage of the Subscription Services;
6.3.2. To improve the quality, design and functionality of the Subscription Services and Software for Customer; or
6.3.3. To improve Company’s internal processes.
7. Professional Services Warranties
Company warrants that (i) the Work Product will conform to the applicable Statement of Work; (ii) the Work Product will comply with all laws, rules, and regulations; (iv) the Work Product will be provided in accordance with industry practices; (v) the Work Product will not infringe on the intellectual property rights of third parties including, but not limited to, any copyrights, patents, trademarks, and/or trade secrets; and (vi) the Professional Services will be performed with reasonable skill, care and diligence.
7.1. If the Professional Services breach any warranty in this Section 7 (Professional Services Warranties), Company’s sole obligation it and Customer’s sole remedy is to have Company, at Company’s election, re-perform the Professional Services to the extent necessary to correct the defective performance or refund the portion of fees associated with such Work Product.
7.2. Customer must provide Company with reasonable information, access, and good faith cooperation reasonably necessary to enable Company to deliver the Professional Services, and must perform its duties identified in the Statement of Work as Customer’s responsibility. If Customer fails to do this and such failure is the sole reason for Company not meeting its obligations, Company will be relieved of its obligations to the extent that the obligations are dependent upon Customer’s performance.
8. Subscription Services Warranties
8.1. Company warrants that: (i) the Subscription Services will be free of Material Deficiencies; and (ii) that Company will furnish Service(s) in accordance with the applicable Support Service Policy.
8.2. Company has no warranty obligations the event and to the extent that the Software has been modified by Customer.
8.3. If the Subscription Services do not conform with the foregoing warranties, Company will, at its expense, use reasonable commercial efforts to correct any such non-conformance immediately, or provide the Customer with an alternative means of accomplishing the desired performance. Notwithstanding the foregoing:
8.3.1. Company does not warrant that the Customer's use of the Subscription Services will be uninterrupted or error-free; nor that the Subscription Services, Software, Documentation and/or the information obtained by the Customer through the Subscription Services will meet the Customer’s requirements; and
8.3.2. Company is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities (other than Company communication facilities or networks), including the internet, and Customer acknowledges that the Subscription Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities (other than Company communication facilities or networks).
8.4. Disclaimer of Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, SOFTWARE, DOCUMENTATION OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SET FORTH IN THIS AGREEMENT, COMPANY DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, SOFTWARE, DOCUMENTATION PROVIDED OR THE OPERATION THEREOF ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. COMPANY MAKES NO IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE, ANY OR OTHER WARRANTY IMPLIED BY LAW, OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
8.5. Limitation of Liability. COMPANY SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR USE OR PERFORMANCE OF THE SUBSCRIPTION SERVICES, SERVICES, SOFTWARE, OR OTHERWISE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, DELAY, ECONOMIC, PUNITIVE OR PROPERTY DAMAGES WHATSOEVER (INCLUDING ANY DAMAGES FOR LOSS OF USE OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY, WHETHER WARRANTY, TORT, CONTRACT OR OTHERWISE. IN ANY EVENT, COMPANY'S MAXIMUM LIABILITY TO CUSTOMER HEREUNDER SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY HEREUNDER DURING THE TWELVE MONTHS PRECEDING ANY SUCH CAUSE OF ACTION.
9. Parties’ Obligations
Customer shall pay: (i) all agreed-upon (in writing) charges applicable to the Subscription Services or Professional Services that are actually delivered by Company; (ii) additional fees or charges arising from supplemental services requested by Customer and that Customer agrees to in writing and/or Customer’s usage of facilities, bandwidth and network capacity above and beyond Customer’s entitlement as set forth in the applicable Order Form; and (iii) other written, mutually agreed charges as may be required for provision of the Subscription Services.
9.1. Customer shall provide Company with all reasonable cooperation in relation to this Agreement and all reasonable access to such information as may be required by Company to perform the Subscription Services, including but not limited to the following:
9.1.1. Customer will: (i) be solely responsible for all Customer Data and any party’s reliance thereunder unless modified by Company and (ii) allow Company, for the sole purpose of its performance under the terms of this Agreement, to copy, display, distribute, download, and otherwise use Customer Data to transmit it over the internet.
9.2. Customer agrees to:
9.2.1. Comply with all applicable laws and regulations with respect to its activities under this Agreement;
9.2.2. Carry out all other material Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Company may adjust any agreed timetable or delivery schedule to the extent reasonably necessary;
9.2.3. Ensure that Customer’s network and systems comply with the relevant specifications provided by Company; and
9.2.4. Be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Company’s Data Centers (other than any connections or telecommunications in Company’s control), and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
10. Term; Termination
The “Initial Term” means the initial period during which the parties agree that Company will provide Customer with the Subscription Services as set out in the applicable Order Form. Unless modified in an applicable Order Form, the Initial Term identified in an Order Form shall automatically renew for additional one (1) year periods (each a “Renewal Term” and, collectively with the Initial Term, the “Term”); provided, however, any Order Form may be cancelled by either party by providing a minimum of six (6) months’ prior written notice before the end of the Initial Term or any Renewal Term.
10.1. Prior to the expiration of the Term, either party may terminate this Agreement or rights granted under a particular Order Form if the other party commits a material breach of this Agreement or an Order Form or Statement of Work and the breach is not cured within 30 days of receipt of written notice from the non-breaching party.
10.2. Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination including, but not limited to, those in Sections 6 (Customer Data and Intellectual Property), 7 (Professional Service Warranties), 8 (Subscription Service Warranties), 10 (Term; Termination), 123 (Confidentiality), 13 (Indemnification and Insurance), and 15 (Miscellaneous) .
11. Proprietary Rights
11.1. Customer acknowledges and agrees that Company owns all intellectual property rights in the Subscription Services, Software and the Documentation. This Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses with respect to the Subscription Services, Software, or the Documentation.
11.2. Company confirms that it has all the rights in relation to the Subscription Services, Software and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11.3. Customer solely owns the intellectual property (including, but not limited to, patents, trademarks, copyrights, and trade secrets) in the Custom Work Product (SOW) and Company agrees to assign, and hereby assigns, all of its right, title, and interest in such intellectual property to Customer unless otherwise agreed in the Statement of Work.
11.4. Permitted Use. Each party shall hold the other party's Confidential Information in confidence and, unless required by law, not make the other party's Confidential Information available to any third party, or use the other party's Confidential Information for any purpose other than for the implementation of this Agreement and purposes permitted by this Agreement. All Confidential Information will be received and held in confidence by the receiving party, subject to the provisions of this Agreement. Each party acknowledges that it will not obtain any rights of any sort in or to the other party’s Confidential Information. Although either party may disclose the general nature of this Agreement, neither party may disclose the specific financial and business terms of this Agreement without the prior written consent of the other party, other than to financial or legal advisors under a duty of confidentiality.
11.5. Non-Disclosure. Each party will restrict disclosure of the other party’s Confidential Information to those of its employees to whom it is necessary to disclose such Confidential Information in connection with the purposes permitted in this Agreement. Each party agrees to use the same discretion and care to protect the other party’s Confidential Information that the party uses to protect its own Confidential Information, but will in all cases make at least reasonable efforts to ensure that the other party's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Each party is responsible for any breach of this Section 12 (Confidential Information) by any party to whom it discloses the other party’s Confidential Information.
11.6. Required Disclosure. Nothing herein will prevent a receiving party from disclosing all or part of the disclosing party’s Confidential Information as necessary pursuant to the operation of law, a court order, or a governmental order; provided that prior to any such disclosure, the receiving party will: (i) promptly notify, if legally permissible, the disclosing party in writing of such requirement to disclose and (ii) cooperate with the disclosing party in obtaining a protective order or otherwise protecting the information from disclosure at the disclosing party’s sole cost and expense.
11.7. Return. Either disclosing party may at any time notify the receiving party that the receiving party must return to the disclosing party the disclosing party’s Confidential Information. Each party hereby agrees to, within ten (10) days of the notification: (i) return all documents and tangible items it or its employees or agents have received pursuant to this Agreement pertaining, referring, or relating to the other party’s Confidential Information Intellectual and (ii) return or certify in a writing attested to by a duly authorized officer of such party that it has destroyed all copies, summaries, modifications, or adaptations that such party or its employees or agents have made from the materials listed in Section 12.4(i) provided by the disclosing party.
11.8. Customer acknowledges that details of the Subscription Services, and the results of any performance tests of the Subscription Services, constitute Company’s Confidential Information. Although copyrighted, the Software, Documentation and other Confidential and Proprietary Information of Company may be unpublished and contain confidential and proprietary information of Company. Customer agrees to treat as confidential and keep secret the Software and Documentation (but may disclose it to its Authorized Users) and to use a reasonable degree of care to protect the confidentiality of the Software and Documentation.
11.9. Company acknowledges that the Customer Data is the Confidential Information of the Customer.
11.10. This Section 13 (Confidential Information) shall survive termination of this agreement.
12. Indemnification by Company
Company will indemnify, defend and hold harmless Customer, its subsidiaries, and affiliates, and their respective employees, contractors, agents and officers, for any and all allegations, damages, liabilities, claims and suits (including, but not limited to, liabilities to third parties or allegations, claims, and suits by third parties) for injury to person, property or any other injury or loss related to, or as a result of any third party claims for intellectual property infringement, including, but not limited to, infringement of copyrights, patents, or trademarks, or misappropriation of trade secrets or know how.
If the operation, possession or use of the Subscription Services by Customer is found to infringe any third party intellectual property right, is subject to a lawsuit that claims the Subscription Services infringe any third party intellectual property right, or Company believes that this is likely, Company may at its option, either (i) obtain a license from such third party for the benefit of Customer; or (ii) modify the Subscription Services so that they no longer infringe. If neither of the foregoing options is commercially feasible, Company may terminate the relevant Order Form under this Agreement, in which case Company shall refund to Customer all fees pre-paid to Company under the relevant Order Form for unused Subscription Services.
13. Indemnification by Customer.
Customer must indemnify and hold harmless Company, and its directors and employees any and all allegations, damages, liabilities, claims and suits (including, but not limited to, liabilities to third parties or allegations, claims, and suits by third parties) for injury to person, property or any other injury or loss related to, or as a result of: (i) the breach of this Agreement by Customer, its employees and/or agents; (ii) the negligent or willful acts of Customer, its employees and/or agents; (iii) Customer’s violation of any law, rule, regulation, or ordinance; or (iv) in connection with the infringement of Customer Data on a third party’s rights, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Customer Data.
14.1. Force Majeure. Each party is excused from performance of this Agreement and is not liable for any delay in whole or in part caused by the occurrence of any contingency beyond the reasonable control of the party. These contingencies include, without limitation, war, sabotage, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of government or any agency or subdivision thereof affecting the terms of this Agreement or otherwise, labor dispute (other than of its own labor force), accident, fire, explosion, flood, severe weather or other act of God.
14.2. Export and Import Regulations. The Subscription Services, Software and Documentation may be subject to export, re-export, or import laws, restrictions, and regulations. Each party agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain any licenses to export, re-export, or import the Subscription Services, Software and Documentation.
14.3. Equitable Relief. Each of the parties hereto acknowledges and agrees that irreparable loss and damage may be suffered by the other party if a party beaches or violates any of the covenants and agreements contained in Sections 5 (Conditions of Use), 6 (Customer Data and Intellectual Property), 11 (Proprietary Rights), or 12 (Confidentiality) hereof, and the parties agree and consent that, in addition to any other remedies available to them, each party hereto is entitled to seek an injunction and other equitable relief to prevent a breach or contemplated breach by the other party hereto of any of the covenants or agreements contained in Sections 5 (Conditions of Use), 6 (Customer Data and Intellectual Property), 11 (Proprietary Rights), or 12 (Confidentiality).
14.4. Entire Agreement. This Agreement (including the exhibits, policies referenced herein, Order Forms and Statements of Work submitted pursuant to this Agreement) constitutes the entire agreement between the parties hereto with respect to the subject matter of this Agreement, and it supersedes all prior or contemporaneous oral or written agreements, commitments or understandings with respect to the matters that are the subject of this Agreement.
14.5. Amendment. No amendment, modification or discharge of this Agreement, or waiver of rights conferred by this Agreement, is valid or binding unless set forth in a writing signed by both parties.
14.6. Assignment. This Agreement cannot be assigned by Customer without the prior written consent of Company.
14.7. Governing Law; Forum Selection. This Agreement and any claims arising out of or relating to this Agreement will be governed by, interpreted, and construed in accordance with the laws (without regard to the conflict of laws rules) of the State of California, U.S.A. The parties agree that this Agreement does not involve the sale of goods and that the Uniform Commercial Code as enacted in any jurisdiction, or any similar statutes concerning the sale of goods applies to this Agreement. The parties further agree that any legal action or proceeding relating to this Agreement will be instituted solely and exclusively in the state courts located in Orange County, California or the federal courts located in Orange County, California, and both parties agree to submit to the sole and exclusive jurisdiction and venue of such courts for any matters related to this Agreement, including, but not limited to, any matters related to the Subscription Services, Professional Services, Documentation, and/or the Software.
14.8. Notices. All notices, demands, requests, or other communications that may be or are required to be given, served, or sent by any party to any other party pursuant to this Agreement will be in writing and will be (i) mailed by first-class certified mail, postage pre-paid, return receipt requested, (ii) transmitted by hand delivery (including hand delivery through an internationally-recognized overnight delivery service), or (iii) transmitted by telegram or facsimile if simultaneously sent by the method specified in (i), in each case to the address set forth below the signature of the respective party on the signature page to this Agreement.
14.9. Severability. If any part of any provision of this Agreement, a Work Order, a Statement of Work, or any other document that makes up part of this Agreement is invalid or unenforceable under applicable law, the invalid provision will be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining parts of the provision or the remaining provisions of this Agreement.
14.10. Waiver. Failure by either party to enforce at any time or for any period of time any provisions of this Agreement will not be construed as a waiver of those provisions and shall in no way affect a party’s right to later enforce those provisions or to enforce any other provision of this Agreement or to exercise any right or privilege under this Agreement.
14.11. Independent Contractors. The relationship between Company and Customer under this Agreement is that of non-exclusive independent contractors only. Nothing in this Agreement will be construed to establish a partnership, joint venture, employer-employee, or agency relationship between Company and Customer. Neither party has any power or authority to bind the other party in any transaction.
14.12. Precedence. To the extent there is a conflict between the terms in the main text of this Agreement and any terms in an Order Form or Statement of Work and any other referenced documents, then the following precedence will apply: (1) this Agreement; (2) Order Form; then (3) Statement of Work.