12.1 Waiver and Severability. No failure or delay by either Party in exercising any right under these Terms will constitute a waiver of that right. All waivers must be in writing and signed by the Party granting the waiver. The waiver by a Party of any of its rights or remedies in a particular instance will not operate as a waiver of any subsequent event or breach by the other Party. If any provision of these Terms is deemed invalid, illegal or unenforceable, that provision will be restated so that it is enforceable to the maximum extent permissible under law and is consistent with the original intent and economic terms of the invalid provision. The remainder of these Terms will remain valid and enforceable in accordance with its terms.
12.2 Subcontractors. Provider reserves the right to use subcontractors (who are under a covenant of confidentiality with Provider), including, but not limited to, offshore subcontractors to assist with Services, including, without limitation, data migration, configuration, and implementation processes. Provider will be and remain fully responsible for the acts and omissions of subcontractors to the same extent as its own employees.
12.3 Non-Solicitation. During the Subscription Term and for twelve (12) months thereafter, neither Party will, directly or indirectly, induce or attempt to induce any employee or consultant of the other Party or any of its Affiliates engaged in the provision, receipt, review or management of the Services to leave the employment of the other Party. Nothing in this Section will preclude either Party from publishing or otherwise making general solicitations of employment not specifically directed towards personnel or hiring personnel because of such general solicitation.
12.4 Force Majeure. Neither Party will be liable for any failure to perform due to circumstances beyond its reasonable control, including without limitation, acts of God; acts of government; natural disasters; fire; civil unrest; acts of terror; pandemic; labor problems (other than those involving such Party’s employees); Internet or telecommunications service provider failures; or cyberattacks. A force majeure event will not include a Party’s financial inability to perform its obligations. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
12.5 Assignment. Neither Party may transfer or assign any of its rights or delegate any of its obligations under these Terms, in whole or in part and including any transfers by operation of law, without the prior written consent of the other Party. However, either Party may transfer or assign its obligations under these Terms in their entirety without the consent of the other Party to an Affiliate or in connection with a merger, acquisition, and corporate reorganization, sale of all or substantially all of its assets or a similar transaction. Any attempted assignment or transfer in violation of this Section will be null and void. These Terms will be binding on and inure to the benefit of the Parties and their respective permitted successors and assigns.
12.6 Relationship of the Parties. The relationship between the Parties is that of independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
12.7 Publicity. Provider may identify Customer as a customer of Provider on Provider’s website as well as within any written and/or electronic marketing material relating to Provider’s products and/or services.
12.8 Third-Party Beneficiaries. These Terms are for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express, or implied, is intended to or will confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
12.9 Compliance with Laws. Each Party will comply with all Laws in the performance of its obligations under any Order and these Terms, including, without limitation, privacy, anti-bribery and modern slavery laws. Each Party will maintain its own policies and procedures designed to ensure compliance with all Laws.
12.10 Governing Law. All matters arising out of or relating to an Order or these Terms will be governed by and construed under the laws of the State of New York, without regard to its conflicts of laws rules. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
12.11 Dispute Resolution. If a dispute should arise between the Parties relating to these Terms or any Order, the Parties shall promptly hold a meeting, attended by persons with decision-making authority regarding the dispute, in an attempt in good faith to negotiate a resolution of the dispute; provided, however, that no such meeting shall be deemed to vitiate or reduce the obligations and liabilities of the Parties or be deemed a waiver by either Party hereto of any remedies to which such Party would otherwise be entitled. If the dispute is not resolved within thirty (30) days after the commencement of negotiations, or if no negotiations are commenced within sixty (60) days after one Party notifies the other Party of such dispute, then such dispute may be resolved by formal legal actions. The foregoing process will not apply if expiration of the applicable time for bringing an action is imminent and will not prohibit a Party from pursuing injunctive or other equitable relief to which it may be entitled.
12.12 Notices. Any notice required or permitted to be given will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate Party at the address set out on Order and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 12.12. Notices are deemed given two (2) business days following the date of mailing or one business day following delivery to a courier.
12.13 U.S. Government End Users. As defined in Federal Acquisition Regulation (“FAR”) section 2.101, Defense Federal Acquisition Regulations Supplement (“DFARS”) section 252.227-7014(a)(1) and DFARS section 252.227-7014(a)(5) or otherwise, all software and accompanying documentation provided in connection with these Terms are “commercial items,” “commercial computer software,” and or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these Terms as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the FAR and its successors, or if purchased by any agency in the Department of Defense, as specified in 48 C.F.R. 227.7202-3 of the DFARS and its successors. Customer will ensure that each copy used or possessed by or for the government is labeled to reflect the foregoing.
12.14 Export Compliance. Each Party represents that it is not named on any U.S. or U.K.government or United Nations list of persons or entities with which U.S. or U.K. persons or United Nations members are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not permit any Authorized User to access or use the Services in any manner that would cause any Party to violate any U.S., U.K. or international embargo, export control law, or prohibition.
12.15 Entire Agreement and Amendments. These Terms, including the Order(s) and any statement(s) of work, sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, and discussions and understandings, written or oral, with respect to such subject matter. These Terms may not be modified or amended except in writing signed by both Parties. These Terms shall take precedence over any conflicting terms in Customer-provided purchase or procurement documentation, such as a purchase order, acknowledgement form, or other similar documentation. Any pre-printed terms and conditions on or attached to Customer’s purchase orders or invoices will be of no force or effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) these Terms, (b) the applicable Order and (c) the Documentation. The titles and headings are for reference purposes only and will not in any way affect the meaning or interpretation of these Terms.
Rev. Oct 24, 2022