Partner Terms & Conditions - updated 9.22.15
These Partner Terms & Conditions ("Partner Terms"), together with an Order Form (“Order Form”) and related Additional Terms, constitute the entire agreement between the parties (the “Agreement”).
Company and Partner are sometimes hereinafter referred to jointly as the “Parties” or singularly as a “Party.”
1. Definitions. Capitalized terms in the Agreement if not otherwise defined shall have the meaning set forth below:
“Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with Partner. For purposes of this definition, “control” when used with respect to any specified entity means the power to direct the management and policies of such entity, directly or indirectly, through the ownership of voting securities; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Company” or “TapClicks” means Tapclicks, Inc., a Delaware corporation, with its principal place of business at 3031 Tisch Way, Suite 1002, San Jose, CA 95128.
“Company Tools” means Company’s pre-existing Intellectual Property Rights including its know how, design tools, methodologies, research, processes, commercially available “shrink wrap” Product(s) or fonts, or other means that may be used to conceive, design, assemble, manage or deliver the Deliverables, and improvements or modifications to such Company Tools.
“End User Materials” means the End User information and materials required by Company to fulfill a Partner order.
“Deliverables” means materials, tools, website access and other resources necessary for an End User to use, access and receive the Product(s).
“End User” or “Customer” means an individual or entity to whom the Product(s) are made available by Partner for ordinary business.
“Error” means a problem with the Product(s) to the extent that it fails to comply with the applicable documentation in all material respects.
“Intellectual Property” means any and all intellectual property rights worldwide arising under statutory law, common law or by contract and whether or not perfected, including all: (i) trade dress, trademark, and service mark rights and the goodwill and applications associated therewith; (ii) patents, patent applications and patent rights; (iii) rights associated with works or authorship including copyrights, copyright applications, copyright registrations, mask works rights, mask works applications, mask works registrations; (iv) rights relating to trade secrets and confidential information; (v) any rights analogous to those set forth in this section and any other proprietary rights relating to intellectual property; (vi) divisional, continuations, renewals, reissues and extension of the foregoing (as and to the extent applicable) now existing, hereafter filed, used or acquired, and whether registered or unregistered; (vii) domain names; and (viii) rights relating to derivative works.
“Order Form” means the ordering documents used for purchase of Product(s) and Services, including addenda, that are signed or electronically accepted by Partner and Company from time to time. Order Forms shall be deemed incorporated herein by reference.
"Partner” means the company or other legal entity accepting this Agreement, and Affiliates of that company or entity.
“Product(s)” means the Company products, software or services listed on the Order Form, as they may be changed from time to time upon mutual agreement of the parties.
“Services” means the services provided by Company or other provider to the Partner or End User.
“Source Code” means the human-readable form of computer programming code, including all the modules it contains, and any associated interface definition files, scripts, instructions, or other materials that are used to control compilation and installation of an executable based upon such human-readable form of computer programming code.
“Upgrade” means any and all major and minor releases or other modifications to the Services and/or Product(s), including, but not limited to, maintenance fixes, refinements, derivatives, modifications, new modules, enhancements and/or other additional features, but does not include features, products or services otherwise identified and offered as separately priced products or services by Company to other third-party users (such separately priced products or services, “Innovations”).
“US” shall mean the United States of America.
2. License Grant.
2.1 Subject to the terms and conditions of the Agreement, Company hereby grants to Partner and Affiliates a non-exclusive, fee-based, worldwide license to (i) distribute and sub-license access to, and use of, the Product(s) to End Users and (ii) promote, solicit and market Product(s) to prospective End Users with respect to the Product(s) including, without limitation, the right to internal use. Partner shall not have the right to sublicense or grant rights to any sub-distributors, resellers, or affiliates without advanced written approval from Company.
2.2 Subject to the terms and conditions of the Agreement, Company hereby grants to Partner a non-exclusive, worldwide license to (i) reproduce and distribute any documentation provided by Company related to Products and/or Services (the "Documentation"); and (ii) modify and create derivative works of the Documentation and upon Company review and prior written approval, distribute the Documentation, and Partner’s modifications and derivative works of the foregoing, directly to End Users and prospective End Users in hard copy, electronically and other means, for purposes of marketing, training and support.
2.3 Partner hereby grants to Company a limited, non-transferable right and license to include the Partner’s trade names, trademarks (including logos and brand names), and service marks (collectively, the “Partner Marks”) in the Deliverables in accordance with the usage guidelines supplied to Company by Partner from time to time and provided such use is previously approved by Partner.
2.4 If applicable, Company will obtain from Partner or End User the right for Company to display the trademark and service mark of such Partner or End User solely for the purpose of performing Company’s obligations hereunder.
3. License Terms and Limitations.
3.1 Ownership and Rights. Company shall remain the sole owner of the Intellectual Property, Product(s), Tools and Documentation provided hereunder, and any rights in patents, copyrights, trademarks, trade secrets, moral rights, and any other proprietary rights related thereto. Company grants to Partner only the rights specifically stated in the Agreement and shall not affect the ownership of, nor convey any licenses or rights under any of the Intellectual Property to Partner or any other third party. All rights, title and interest not specifically granted by the Agreement are reserved to Company.
3.2 Sales Efforts. Partner shall use commercially reasonable efforts to market, promote and sub-license the Product(s).
3.3 Competitive Product(s). During the term hereof, Partner shall not, directly or indirectly (i) develop and/or distribute products or services similar to or competitive with the Product(s) and Services, or (ii) distribute third-party products that are similar to or competitive with the Product(s) and Services.
3.4 Restrictions. Partner shall: (i) not disassemble, reverse engineer, reverse compile or in any other way try to gain access to Confidential Information (defined in Section 10.1) regarding the construction of the Product(s), including without limitation underlying Source Code; (ii) only use the Product(s) as permitted under the Agreement; and (iii) secure the Product(s) to the same or materially equivalent extent as Partner protects its own intellectual property or similar products or services. Partner shall not have the right to modify or create derivative works from the Product(s), whether on a stand alone basis or as part of a Partner product, software, or service, in any respect. Without limiting the foregoing, Partner shall not remove or alter any copyright or other proprietary notices or marks of Company affixed to or embedded in the Product(s), and shall include the same in all copies made by Partner to the extent permitted hereby. Except as may be affixed to or embedded in the Product(s) or otherwise consistent with purpose of the Agreement, Partner shall not use any marks of Company without Company’s prior written consent.
3.5 Partner shall promptly notify Company in writing of any perceived infringement of Company’s Intellectual Property.
4. Compensation, Fees and Taxes
4.1 Pricing. All payments hereunder shall be made in US dollars. The pricing for all Product(s) and Deliverables by Partner and End Users shall be as set forth on the Order Form. Company may amend, modify, or terminate any or all of the Product(s), options, fees or services as identified in the Order Form with 30-day written notice to the End User.
4.2 Taxes. The Fees and other amounts payable pursuant to the Agreement are exclusive of, and Partner shall pay, all federal, state, local, municipal or other sales, use, transfer, excise, property and other taxes and duties imposed with respect to the use, possession, resale, license, or delivery of the Product(s) or any Deliverable sold to, supplied to, or used by, the Partner or End User, except for taxes based on Company’s net income. Partner shall obtain and provide to Company any certificate of exemption or similar document required to exempt any transaction under the Agreement from sales tax, use tax or other tax liability.
4.3 Invoicing and Payment. As consideration for Company’s rendering of the Services and the other good and valuable consideration stated herein, Partner shall pay Company the fees specified on the Order Form (“Fees”). Partner will provide Company with valid and updated credit card information, ACH payment method, or with a valid purchase order or alternative document reasonably acceptable to Company to facilitate payment ("Payment Method"). If Partner provides credit card information to Company, Partner hereby authorizes Company to charge such credit card for all Products and Services set forth in the applicable Order Form for the initial subscription term and any renewal term whether on a one-time or recurring basis or both and such charges shall be made on the last day of each month or as otherwise stated in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced charges are due within thirty (30) days of the invoice date. Partner is responsible for providing complete and accurate billing and contact information to Company and for notifying Company of any changes to such information.
4.4 Overdue Charges; Suspension of Services. If any payments are not received by Company by the due date then, at Company’s discretion, such overdue charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any amount owing by Partner under this Agreement for Products and Services is thirty (30) or more days overdue, Company may, without limiting other available rights and remedies, accelerate any unpaid fee obligations under the Agreement so that all such obligations become immediately due and payable, and may suspend access to the Products and Services until such amounts are paid in full; provided that Company will give Partner at least seven (7) days’ notice prior to suspending such access.
5. Publicity. Company and Partner may jointly use the others logos in any marketing materials, press releases, customer lists or other publicity upon submitting and receiving other Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, if applicable, Company may issue an initial press release in relation to Company’s integration and use of Partner’s products in the Platform which shall include, without limitation, the Partner Marks.
6. Representations and Warranties; Disclaimer.
6.1 By Both Parties. Each Party represents and warrants that:
6.1.1 Under the laws of its jurisdiction or organization and governance documents, (i) it has full power and authority to enter into and perform the Agreement; (ii) the person signing the Agreement on behalf of each Party hereto has been properly authorized and empowered to enter into the Agreement; (iii) upon its duly authorized execution and delivery by a Party, the Agreement will be a legally binding obligation of such Party; (iv) the performance of the Agreement will not conflict with its governing documents or any contract or commitment it has entered into; and (v) it will perform its obligations hereunder in compliance with all applicable federal, state and local laws.
6.1.2 It is the owner of all equipment and materials, including the intellectual property, that relate to, comprise or are otherwise used to provide the Deliverables to End Users;
6.1.3 The intellectual property which it incorporates into the Deliverables, Services, or the Products including any assigned rights, does not, and will not, infringe any patent, copyright or trademark rights of any third party, under the laws of any United States government or any other governmental entity worldwide;
6.2 By Company. Company further warrants and represents that:
6.2.1 The Services performed under the Agreement will be performed in a timely, professional and workmanlike manner consistent with standard industry practices and procedures by qualified personnel and Company has the required skills and experience to perform its obligations set forth in the Agreement;
6.2.2 The Products, Services, and Deliverables (i) will conform to the acceptance criteria agreed upon by the Parties in good faith; (ii) will comply with all law, including any rules, rulings and regulations of any applicable governmental entity; Company hereby passes through the manufacturer’s warranty on any products and materials included in the Deliverables or Products, including on all third party product(s) and other materials acquired from Company by the Partner. Company shall have no obligation to make corrections, repairs or replacements to the Deliverables which result, in whole or in part, if the deficiency results from (i) catastrophe, fault or negligence of Partner, (ii) improper or unauthorized use of the Deliverables, or (iii) use of the Deliverables in a manner for which they were not designed;
6.2.3 Where the Deliverables contain any production-ready Product(s) source code created by Company or its Affiliates (“Product(s)”), the Product(s) has passed Company internal quality assessment testing such that the Product(s) functions in accordance with the final specification and requirements document;
6.2.4 If Company incorporates into any Product(s) source code licensed from GNU Public License, the Free Product(s) Foundation, or similar public license (collectively, “Open Source Product(s)”) it will comply with all obligations related to such Open Source Product(s).
6.3 By Partner. Partner understands that Company plans to offer use of the Product(s) to others. Those uses shall not constitute a violation of the Agreement. THE SERVICES ARE PROVIDED “AS IS”. PARTNER ASSUMES THE RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF THE SERVICES, FOR ITS USE AND FOR THE USE OF ITS END USERS. COMPANY MAKES NO WARRANTY THAT ALL ERRORS HAVE BEEN OR CAN BE ELIMINATED FROM THE SERVICES, EXCEPT AS EXPRESSLY STATED HEREIN, AND COMPANY SHALL IN NO EVENT BE RESPONSIBLE FOR ANY LIABILITY FOR BUSINESS EXPENSES, MACHINE DOWNTIME, OR ANY OTHER DAMAGES CAUSED TO PARTNER OR ITS END USERS BY ANY DEFICIENCY, DEFECT, ERROR, OR MALFUNCTION THAT RESULTS IN THE LOSS OF END USER DATA, OR ERRORS OR NON-PERFORMANCE OR RESTRICTIONS OF THIRD PARTIES OR THIRD-PARTY PRODUCT PROVIDING SERVICES TO PARTNER OR END USERS. Without limiting the generality of the foregoing, except with respect to credits for loss of service availability as provided in the Agreement, Company is not liable for loss of service, access, or data for any reason including, but not limited to, any unforeseen or preventable failure related to changes in infrastructure or telecommunication traffic capabilities, failure or breakdown of the Internet, the World Wide Web, any related telecommunications equipment or systems, or any computer hardware or Product(s).
6.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR TO ANY OTHER MATERIALS, GOODS OR SERVICES FURNISHED TO PARTNER HEREUNDER, AND HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE USE OR PERFORMANCE OF THE SERVICE. Company makes no warranty that the Product(s) shall operate uninterrupted or be error free.
7.1 By Company. Company shall indemnify and hold harmless Partner and its officers, directors, employees, agents, successors and permitted assigns against any and all losses that arise out of or relate to a claim arising out of or related to or in connection with: (i) any Deliverable, Product, or any of the Services including any claim that any Deliverable, Product, or any of the Services infringe any valid US patent or the US copyright, trade secret, trademark right of a third party; (ii) any breach of the terms, obligations and covenants of the Agreement by Company; or (b) any breach by Company of any representation or warranty of Company set forth in the Agreement. Notwithstanding the foregoing, in no event shall Company be liable for any third-party claim, demand or suit based on or related to (a) Indemnified Parties’ use or directed use for a purpose or in a manner for which the Product(s) was not designed; (b) Indemnified Parties’ use or directed use of any older version of the Product(s) when use of a newer version of the Product (which newer version is functionally-equivalent or better and which is compatible with the prior infringing version) which Company has made available to Partner under the Agreement would have avoided the infringement; (c) any modification not made with Company’s written approval; (d) any modifications made by Company pursuant to Partner’s specific instructions; or (e) the combination, operation or use of the Product(s) with equipment, data or Product(s) not furnished by or approved by Company if such infringement could have been avoided through the use of other equipment, data or Product(s), or by the avoidance of use with equipment, data or Product(s) not provided by Company, or (f) any acts of willful misconduct and/or negligence of Indemnified Parties, including its officers, directors, agents and employees. In connection with the foregoing, Indemnified Parties shall provide Company with (i) prompt written notice of any claim under this Section (but late notice shall not void Company’s obligations in this Section unless the lateness itself completely prejudices Company’s ability to fulfill its obligations), and (ii) reasonable cooperation and assistance, at Company’s expense, with regard to such claim. When settling or compromising any claim, Company shall not, without Partner’s written approval, such approval to not be unreasonably withheld, conditioned or delayed, make any material admission of facts or liability whatsoever regarding Partner or its Affiliates.
7.1.1 Remedies. Should the Product(s), Deliverable(s), or Services or use of the Product(s), Deliverable(s), or Services become, or in Company’s opinion likely to become, the subject of a claim, Company shall, at its own option and expense, either (i) procure the right for the Indemnified Parties to continue using such, or (ii) replace or modify the Product, Deliverable, or Service with a compatible, functionally-equivalent replacement/modification so that it no longer infringes or misappropriates. If neither (i) nor (ii) above are commercially feasible, Company shall be entitled to terminate the Agreement and shall refund Fees paid by Partner to Company therefor to the extent Partner is required to reimburse its End Users such amounts, subject to Section 10.3.2 below.
7.1.2 Sole Remedy. THE FOREGOING ARE COMPANY’S SOLE AND EXCLUSIVE OBLIGATIONS AND PARTNER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR THE OTHER BREACH UNDER THE AGREEMENT.
7.2 Partner Indemnity. Partner shall, at its expense, defend, indemnify and hold harmless Company (including its officers, directors and employees) (“Company Indemnified Parties”) from and against any third-party liabilities, claims, demands or suits in connection with (A) Partner’s distributing or marketing any Partner product(s) (excluding claims for which Company is obligated to defend under this Section), (B) Partner’s breach of the Agreement or (C) Partner’s violation of applicable law. In connection with the foregoing, Company shall provide Partner (i) prompt notice of such claim (but late notice shall not void Partner’s obligations in this Section unless the lateness itself prejudiced Partner’s ability to fulfill its obligations) and (ii) reasonable cooperation and assistance, at Partner’s expense, with regard to such claim. When settling or compromising any claim, Partner shall not, without Company’s written approval, make any admission of facts or liability whatsoever regarding Company.
7.3 Procedure. A Party seeking indemnification for a claim under the Agreement (the "Indemnified Party") shall promptly notify the other Party (the "Indemnifying Party") in writing of the claim, but the failure to do so shall not relieve the Indemnifying Party of any obligation or liability hereunder except to the extent the Indemnifying Party has been materially prejudiced thereby. The Indemnifying Party may elect, by written notice to the Indemnified Party within 10 days after receiving notice of such claim, to assume the defense thereof with counsel. If the Indemnifying Party does not so elect to assume such defense or the Indemnifying Party has not responded within ten days following receipt of such notice, then the Indemnified Party shall retain counsel to defend such claim, at the Indemnifying Party’s expense. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any Claim against which it is indemnified hereunder and for which the Indemnified Party has assumed the defense. In defending such Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party consent to entry of any judgment or enter into any settlement which: (i) does not include, as an unconditional term, the grant by the claimant to Indemnified Party a release of all claims and liabilities; or (ii) otherwise adversely affects the rights of the Indemnified Party.
8. Data and Privacy.
8.1 Rights. Partner and Company shall comply with all applicable laws related to protection of Personally-Identifiable Information (defined below). Company shall be the owner of all right, title and interest in any and all Aggregate Information (defined below), and may use Aggregate Information for any lawful business purposes.
8.2 Certain Definitions. “Personally-Identifiable Information” means an End User’s name, address, telephone number, e-mail or IP address and any other information that can be used to obtain the identity, address or any other unique information about the End User, including, without limitation, all derivations, compilations or analysis which includes any such information. “Aggregate Information” means all information about any End User, including without limitation the number of End Users and their usage frequency and habits and other information derived from their use of the Product(s), except for Personally-Identifiable Information.
9. Confidentiality; Security.
9.1 Confidential Information. The parties understand and agree that in the performance of the Agreement each Party may have access to private or confidential information of the other Party, including, but not limited to, trade secrets, marketing and business plans, technical information, client information, which is designated as confidential by the disclosing Party in writing or which the receiving Party knew or should have known was confidential, including all data and information obtained by Company that is related to, or provided by, End Users (collectively, "Confidential Information"). The parties agree that the terms of the Agreement, but not its existence, including without limitation its financial terms and any reports delivered by a Party hereunder, shall be deemed Confidential Information owned by the Party delivering the reports.
9.2 Exceptions. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes a part of the public domain through no act or omission on the part of the receiving Party, (ii) is disclosed to a third person by the disclosing Party without restriction on such third person, (iii) is in the receiving Party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under or in connection with the Agreement, whether received prior to or after the date of the Agreement, (iv) is disclosed to the receiving Party by a third person having no obligation of confidentiality with respect thereto, (v) is independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information, (vi) is released from confidential treatment by written consent of the disclosing Party, or (vii) is required to be disclosed by law, provided that, to the extent practicable under the circumstances, the receiving Party gives sufficient notice to the disclosing Party in advance of such disclosure to enable the disclosing Party to seek legal recourse to prevent such disclosure.
9.3 Obligations of Confidentiality. As between the Parties, all Confidential Information shall remain the exclusive property of the disclosing or owning Party, as applicable and each Party shall use prudent methods to protect the Confidential Information of the other Party, including ensuring that its employees and agents do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information.
9.4 Security. If Company will be given access to Partner’s computer system(s) or product(s) ("Systems") in connection with use or performance of the Product(s), Company shall comply with Partner’s system security policies, as may be revised by Partner from time to time and will not tamper with, compromise or circumvent any security or audit measures employed by Partner. Failure to comply with the System security policies shall be a breach of the Agreement entitling Partner to immediately terminate the Agreement. Company agrees that Partner may review any information, electronic mail communications, or other data stored on or contained in any computer hard drive, disk, or any other storage medium located on the premises of Partner to determine whether there has been any breach of security or violations of the Agreement, regardless of whether such computer hard drives, disks, storage media or electronic mail communications are on equipment owned or leased by Partner or are brought or sent onto Partner’s premises by Company, its employees or agents.
10. Term; Termination; Effect of Termination.
10.1 Term. The Agreement shall commence and terminate as indicated on the Order Form.
10.2.1 Uncured Breach. If a Party breaches any provision contained in the Agreement, and such breach is not cured within 90 days after receiving written notice of such breach from the other Party, then the non-breaching Party may deliver a second written notice to the breaching Party terminating the Agreement, in which event the Agreement, and any rights granted hereunder shall terminate on the date specified in such second notice.
10.2.2 Termination for Material Breach. If either Party believes that the other has breached a material provision of the Agreement, then it shall notify the other in writing, specifying in reasonable detail the alleged breach and supporting facts. If the breaching Party has not remedied the alleged breach within thirty (30) days after the written notice thereof, the breaching Party may terminate the Agreement upon written notice with immediate effect.
10.2.3 Termination for Convenience. Unless otherwise stated in the Order Form, at the end of the Initial Term, either Party may terminate the Agreement for its convenience at any time upon ninety (90) days prior written notice to the other Party.
10.2.4 Insolvency. In the event that any Party shall be adjudged insolvent or bankrupt, or upon the institution of any proceedings by it seeking relief, reorganization or arrangement under any laws relating to insolvency, or if an involuntary petition in bankruptcy is filed against such Party and said petition is not discharged within 30 days after such filing, or upon any assignment for the benefit of its creditors, or upon the appointment of a receiver, liquidator or trustee of any of its assets, or upon the liquidation, dissolution or winding up of its business (an "Event of Bankruptcy"), then the Party affected by any such Event of Bankruptcy shall immediately give notice thereof to the other parties, and either of the other parties at its option may terminate the Agreement, and the licenses and rights granted hereunder, upon written notice.
10.3 Effect of Termination; Wind Down Period; Survival.
10.3.1 Upon Termination. Upon expiration or termination of the Agreement for any reason (“Termination”), Company shall invoice Partner for amounts due and payable at such time. Further, each Party, at its expense, shall either destroy or return to the other Party within five business days all copies of the other Party’s Confidential Information.
10.3.2 Termination Assistance. Upon Termination, Partner will cease marketing and selling, the Product(s) and Deliverables. At Partner’s request, however, Company shall, for a period of up to one month after the Termination, or written extension thereof (the “Termination Assistance Period”) (i) continue to provide access, use, and possession of the Product(s) (or portion thereof) for Partner or those End Users who request them; (ii) cooperate with Partner or another service provider designated by Partner in the transfer of information relevant to the Partner or such other service provider; and (iii) perform any other services reasonably requested by Partner accommodate such transition (the services in clauses (i) through (iii), the “Termination Assistance Services”). The parties shall negotiate rates for the Termination Assistance Services.
10.3.3 Survival. Any provision of the Agreement that by its very nature or context is intended to survive termination shall survive, including but not limited to Sections (and all included sub-sections) 1, 2 (but only to the extent necessary for Partner to exercise its rights and fulfill its obligations under Section 3.1), 3.4, 4 (but only if fees and/or taxes are due and owing at termination), 6.4, 7, 8, 10.3.1, 10.3.3, and 11.
11.1 Notices. All notices, consents, approvals, requests, claims, demands and other communications hereunder (collectively, “Notices”) shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by telecopy, by national overnight courier service (such as, Federal Express, DHL, Airborne, UPS), or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the addresses on the Order Form or the signature page of the Agreement (or at such other address for a Party as shall be specified in a Notice given in accordance with this Section).
11.2 Severability. The Agreement shall be enforced to the fullest extent permitted by applicable law. If any provision of the Agreement is held to be invalid, illegal or incapable of being enforced to any extent, then such provision shall be interpreted, construed and reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision, and while all other terms and provisions of the Agreement shall nevertheless remain in full force and effect.
11.3 Assignment. Neither Party shall assign or transfer the Agreement by operation of law or otherwise without the prior written consent of the other Party, except in connection with a change of control in which case such assignment shall not be required unless the change of control involves a direct competitor of the non-assigning Party. The Agreement shall be binding upon and inure to the benefit of the successors and the permitted assigns of the respective Parties hereto.
11.4 Limitation on Certain Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL NOT SERVE TO LIMIT, IN ANY WAY, (I) EITHER PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, AND (II) EITHER PARTY’S RIGHTS TO STATUTORY DAMAGES BASED ON INFRINGEMENT BY THE OTHER PARTY OF THE TRADEMARK OR COPYRIGHT RIGHTS OF THE AGGRIEVED PARTY. COMPANY’ AGGREGATE LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY PARTNER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
11.5 Governing Law. All disputes under the Agreement shall be governed by the laws of the State of California, without reference to its conflicts of law provisions, and shall be resolved exclusively in the state or federal courts in the State of California. Each Party agrees to accept services of process by mail, consent to the jurisdiction of such courts, and hereby waive any jurisdictional or venue defenses otherwise available to it. The Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
11.6 Waiver. Failure or delay by any Party to enforce compliance with any term or condition of the Agreement shall not constitute a waiver of such term or condition. All waivers hereunder shall be in writing and executed by an authorized representative on behalf of the Party against whom such waiver is asserted. A waiver of a breach or a term under the Agreement shall not be deemed a waiver of any other or subsequent breach, or a waiver of any other term.
11.7 Headings. Section headings are for the convenience of the parties and shall not affect the meaning, construction or interpretation of the text of the Agreement.
11.8 No Agency. Except for Partner’s duties as a distributor of the Deliverables, nothing in the Agreement shall be construed to constitute or appoint either Party as the agent or representative of the other Party for any purpose whatsoever, or to grant to either Party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever.
11.9 Controlling Language. The Agreement is in English only, which language shall be controlling in all respects. All documents exchanged under the Agreement shall be in English.
11.10 Authority. The person signing the Agreement and the Order Form on behalf of each Party below acknowledges that he or she is binding the entire company or entity and has the authority to do so.
11.11 Independent Contractor. This Agreement establishes an independent contractor relationship between the Parties, and neither an employee/employer relationship, nor a joint venture relationship or any other relationship is established hereby. Each of Partner and Company alone shall be responsible for payment of all remuneration to its employees and bear all taxes associated therewith.
11.12 Entire Agreement. This Agreement together with each applicable Order Form and any other mutually agreed upon exhibits or attachments sets forth the entire understanding of the Parties with respect to the subject matter hereof. This Agreement shall not be amended or modified except by written instrument duly executed by authorized signatories of both Parties. Any and all previous Agreements, representations and understandings between the parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement and of no further force and effect. Any waiver of a breach or violation of this Agreement must be in writing in each instance.
11.13 Force Majeure. Neither Party will be liable for delay, default or inadequate performance to the extent caused by a condition (including, without limitation, fire, flood, natural disaster, act of war or terrorism, riot, labor condition, acts of God, governmental action, and Internet disturbance) that was beyond the Party’s reasonable control.
11.14 Counterparts. This Agreement may be executed in multiple counterparts, including facsimile, PDF, or other electronic copies, each of which shall constitute an original and all of which taken together shall constitute one and the same Agreement. PDF or facsimile signatures shall be deemed to be of the same force and effect as original signatures and legally binding and admissible in any court or tribunal of competent jurisdiction.
11.15 Government Rights. The Product(s), Services, and Documentation are “Commercial Items” as that term is defined at 48 CFR 2.101 consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 CFR 12.212 or 48 CFR 227.7202, as applicable. The rights to the Product(s), Services and Documentation are granted to U.S. Government end users (a) only as Commercial Items and (b) only with those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.