Certain capitalized terms, not otherwise defined on the Order, have the meanings set forth in this Section 1.
1.1 “Addendum” shall mean any addendum to this Agreement.
1.2 “Application Services” shall mean the services and Software described in Appendix A and Provider content provided by Provider by means of access to certain content and use of the features and functionality of software applications available and accessible within the Provider web sites (the “Application” or “Platform”).
1.3 “Blocked Person” shall mean any individuals, entities or organizations subject to sanction by the US Department of Commerce, the US Department of State, the US Department of the Treasury or any other agency of the US government (a consolidated list of such persons being available at https://www.export.gov/csl-search), the United Nations, the European Union or the United Kingdom.
1.4 “Business Day” shall mean a day during which normal business is conducted and is not weekend or a public holiday in the applicable jurisdiction.
1.5 “Client” shall mean the purchasing entity identified in the Order Form..
1.6 “Client Brand” shall mean any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by Client as of the Effective Date.
1.7 “Confidential Information” will have the meaning set forth in the non-disclosure agreement entered into by the Parties, or in the absence of such a non-disclosure agreement will mean all written or oral information, disclosed by either Party to the other, related to the operations of either 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.
1.8 “Documentation” will mean documentation related to Client’s access to the Software and use of the Application Services delivered by Provider to Client, as updated by Provider from time to time.
1.9 “Embargoed Jurisdiction” shall mean those countries or jurisdictions subject to embargo by the United States, including the Crimea region, Cuba, Iran, North Korea and Syria.
1.10 “Effective Date” shall mean the last date on the signature block on the Order Form.
1.11 “Event” shall mean one Virgin Pulse GO event.
1.12 “Event Launch Date” shall mean the first day of the Virgin Pulse GO Event.
1.13 “Indirect Transaction Taxes” shall mean any relevant value added tax (VAT), goods and services tax (GST), sales, use or consumption or similar tax or impost imposed, levied or assessed by any government agency or otherwise payable, but does not include any related penalty, fine or interest thereon.
1.14 “Minimum Requirement” shall mean the minimum number of Participants for which the Client shall pay applicable fees.
1.15 “Order Form” shall mean the document containing order information for the Client.
1.16 “Participant” shall mean the Client’s employees authorized to participate in the Virgin Pulse GO and having access to the Application Services, provided that persons under contract with Client may not be Participants unless the same have entered into a binding agreement to maintain the confidentiality of the Access Protocols and all Provider Confidential Information, for example, by agreeing to the Membership Agreement during enrollment in the Event.
1.17 “Participant Data” shall mean any information entered by Participants into the Application Services, or information for which Participant has provided its express consent to be shared for the purposes of allowing Provider to administer the program.
1.18 “Party” or “Parties” shall mean the Client and Provider collectively.
1.19 “Provider” shall mean Virgin Pulse, Inc., and its predecessors in interest, or any of its wholly owned subsidiaries with which Client is contracting.
1.20 “Registration Fees” shall mean the fees payable by Client calculated in accordance with the information in the Order Form.
1.21 “US Export Controls and Trade Sanctions” shall mean all laws, regulations and orders of the United States relating to export controls and trade sanctions, including but not limited to the Export Control Reform Act of 2018, the Trading with the Enemy Act (50 U.S.C. App. 1 et seq.), the International Emergency Economic Powers Act (50 U.S.C. §§ 1701-1707), and any regulations or orders issued pursuant thereto, including but not limited to the Export Administration Regulations (15 C.F.R. Parts 730-774) and the economic sanctions and embargoes programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control (31 C.F.R. Part 501 et seq.).
1.22 “Virgin Pulse GO Starter Pack” shall mean the “Starter Pack” that Provider may provide to Event Participants depending on the specific Agreement terms. The “Starter Pack” shall consist of the Virgin Pulse GO Max Buzz device, and, as applicable, a matching booklet.
2.1 Provision of Access for Participant. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Client a non-exclusive, non-transferable, (a) object-code only, non-exclusive, non-transferable license to use the Software, and (b) right to permit access to the Application Services for the number of Participants specified on the Order Form, for which you have paid the applicable fees solely in accordance with the terms and conditions of this Agreement and the Membership Agreement.
2.2 Usage Restrictions. Client will not (a) copy or duplicate the Application or Software; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Application Services or Software is compiled or interpreted; (c) modify the Application Services or Software or the Documentation, or create any derivative product from any of the foregoing, except with the prior written consent of Provider; or (d) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Client’s rights under Sections 2.1 or 2.2. Client will ensure that its use of the Application Services and the Documentation complies with all applicable laws, statutes, regulations or rules. Client shall notify Provider immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
2.3 US Export Controls and Trade Sanctions Compliance. Client will not request access to the Application Services for any Eligibles or request integrations with any Connected Partners who would be prohibited from receiving goods or services from the Provider pursuant to US Export Controls and Trade Sanctions, including but not limited to Blocked Persons or persons who are located in Embargoed Jurisdictions. Provider shall be under no obligation to provide such persons with access to the Application Services.
2.4 Retained Rights; Ownership.
(a) Subject to the rights granted in this Agreement, Client retains all right, title and interest in and to the Client Brand, and Provider acknowledges that it neither owns nor acquires any additional rights in and to the Client Brand not expressly granted by this Agreement Provider further acknowledges that Client retains the right to use the Client Brand for any purpose in Client’s sole discretion. Subject to the foregoing, Client hereby grants to Provider a non-exclusive, non-transferable right and license to use the Client Brand during the Term for the limited purposes of performing Provider’s obligations under this Agreement.
(b) Subject to the rights granted in this Agreement, Provider retains all right, title and interest in and to the Application Services, Software, and the Documentation, and Client acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Client further acknowledges that Provider retains the right to use the foregoing for any purpose in Provider’s sole discretion. Nothing in this Agreement shall be construed as granting the Client or Participants any right, title or interest in or to the Provider’s Application Services, Software and Documentation.
3.1 The Event. Provider will make available the Event in accordance with the terms of this Agreement. Client understands that prior to access to the Platform, Client shall pay the applicable invoices as mutually agreed by the Parties without delay.
3.2 Participant Access. Provider will provide each Client with a unique URL for Client’s employees to register on the Virgin Pulse GO platform. Clients employees become Virgin Pulse GO Participants, and are then able to create a unique password granting them access to the Platform to enable them to participate in the Event. Client shall be responsible for screening its Participants and to ensure they are not Blocked Persons nor are they located in any Embargoed Jurisdictions.
3.3 Virgin Pulse GO Starter Pack. As applicable, Provider may furnish each Participant with the Virgin Pulse GO Starter Pack, which shall include the Virgin Pulse GO Max Buzz, and corresponding booklet. Provider shall not be required to provide the Virgin Pulse GO Starter Pack to any person in violation of US Export Controls or Trade Sanctions, including but not limited to persons who are Blocked Persons or who are located in an Embargoed Jurisdiction.
3.4 Additional Items. Provider may furnish the Client with additional items, as agreed to by the Parties.
3.5 Platform. Provider will take all reasonable precautions and actions to ensure that the Platform is accessible and minimize any technical issue or potential downtime.
3.6 Additional Benefits. In addition to the Event, Provider may, at its discretion, provide additional benefits to Client and its Participants, by way of newsletters, information bursts, competitions and other electronic communications designed to enhance the wellbeing of Participants. The additional benefits are provided free of charge. The presence of additional communications, or lack thereof, throughout the course of the Event, does not impact Client’s obligations towards the Provider. Client may request that no additional communications be sent to its Participants. Furthermore, individual Participants may opt out of receiving such communications.
3.7 Rights with Respect to Unauthorized Use. The Parties acknowledge and agree that Provider, in the exercise of Provider’s sole discretion, shall be permitted to adjust, remove, or otherwise alter Participants activity or statistics achieved in a manner that violates the Membership Agreement or have otherwise been accumulated in a fraudulent or dishonest manner.
4.1 Participant Access to Services. Subject to the terms and conditions herein, Client may permit the Participants to access and use the features and functions of the Application Service.
4.2 Registration. The Client shall register its details as participating (using the approved registration form available on the Virgin Pulse GO website) in the Event in each applicable Event at least 60 days prior to the commencement of the Event.
4.3 Communications with Participants. Client shall take all reasonable steps to ensure that all Participants take part in the Event in accordance with the rules and regulations published on the Virgin Pulse GO website, or as communicated by Provider from time to time.
4.4 Client Assistance. Client shall be solely responsible, at its own expense, for acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as may be necessary for it and its Participants to connect to, access, and use the Application Services.
4.5 Client Brand. Client shall make available in a timely manner at no charge to Provider all content, graphic files, Client Brand information or other information and resources of Client required by Provider for the performance of its obligations under this Agreement. Client shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such content, materials and information supplied by Client. Client shall permit Provider to use its logo and name in Provider’s promotional and publicity materials, and disclose that Client is a participating employer. Client shall permit Provider to use its comments and feedback for promotional and publicity materials, as well as to improve Provider’s service offering.
4.6 Participant Registration. Client shall, as soon as reasonably predictable, notify Provider if the number of Participants in the Event in any Event will be materially different to that set out in the Order Form.
4.7 Participant Participation. The Parties agree that employees will not be regarded as taking part in the Event in each Event and nor will it be entitled to a Virgin Pulse GO Starter Kit until: (a) payment of the applicable Registration Fee has been made; (b) the Participant has completed registration on the Platform for the applicable Event in the relevant Event.
4.8 Browser Requirements. Upon request, Provider will share any applicable information pertinent to Browser Requirements as part of its IT Specifications Documentation.
5.1 Participant Data. Client acknowledge that Provider will process all collected Participant data, as defined in applicable privacy laws, in accordance with applicable laws and the requirements of the Privacy Notice. Participants will have access solely to their individual Participant Data and such data will be protected under the terms of the Membership Agreement and the terms of Provider’s Privacy Notice.
5.2 Client Conduct. Client represents and warrants that it will comply with all applicable laws and other obligations pertaining to Participants health, safety and wellbeing in connection with the event. Insofar as Client may receive or collect any Participant data, Client represents and warrants that it will comply with all applicable laws and regulations with respect to employment and discrimination.
6.1 Fees. In consideration for the access rights granted to Client and the services performed by Provider under this Agreement, Client will pay to Provider, without offset or deduction, all fees as may be determined by reference to the pricing proposal, as described below and as attached hereto as the Order Form. All fees shall be due and payable within thirty (30) days of the date of Provider’s invoice.
a) Registration Fees. Unless otherwise specified on the Order Form, the Client shall be invoiced for the Registration Fees on the Event Launch Date. The Registration Fees are calculated as the greater of (a) Minimum Participant Requirement; or (b) the actual number of Participants on record in Provider’s systemThe Client may receive a second invoice thirty (30) days after the Event Launch Date, to adjust the Registration Fees to cover registrations occurred after the Event Launch Date and for any variation in the actual number of Participants. All invoices shall be due and payable thirty (30) days after the date of Provider’s invoice.
6.2 Client Operating Expenses. Client will bear all expenses incurred in performance of its obligations hereunder, including, without limitation, through use by Client and/or any Participant of the Application Services, and/or through provision of support to Participants with respect to such use of the Application Services.
6.3 Taxes. All amounts payable under this agreement are exclusive of any Indirect Transaction Taxes. If Indirect Transaction Taxes are payable under this agreement, and if Provider is required by any applicable laws to collect and remit Indirect Transaction Taxes to an appropriate government agency, the Employer shall pay to Provider applicable Indirect Transaction Taxes at the percentage rate required by any applicable laws in the jurisdiction where the Indirect Transaction Taxes are payable.
6.4 Late Payments; Interest. Any portion of any undisputed 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. All payments to be made under this Agreement shall be made in the local currency of the Applicable Jurisdiction as identified in the Order Form. Notwithstanding the foregoing, if Provider does not receive payment of any sum due to it within thirty (30) days of the invoice, Provider reserves the right to suspend Participant access to the Application Services.
6.5 Refund. Client acknowledges and accepts that, except where required by law, it shall not be entitled to a refund of the Registration Fees paid to Provider.
7.1 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.
7.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential Information disclosed by the other 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 have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to return or destroy, pursuant to Section 11.5, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Client agrees that Provider may utilize de-identified, aggregated statistical data regarding Client’s use of the Service solely for the purposes of planning future development of the platform and services. Other than for purposes of providing services to Participants under this Agreement, in no event shall Provider provide to third parties specific data regarding Client or Client’s Participants.
7.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 7.1 and 7.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose 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 shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do. Client also acknowledges and agrees that Provider may freely use any comments, ideas and/or error reports provided by Client to Provider and such comments, ideas and/or error reports shall not be considered proprietary to Client.
Each Party hereby represents and warrants (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) neither it nor its owners are Blocked Persons or are located in an Embargoed Jurisdiction; (c) that the execution and performance of this Agreement will not conflict with or violate any provision of law having applicability to either Party (including but not limited to US Export Controls and Trade Sanctions); (d) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (e) that 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. In addition, Client hereby represents and warrants (x) that it shall not provide Provider with any individual’s social security number, even as a unique employee identifying number; and (y) that it shall only use the data received from Provider in accordance with this Agreement.
9.1 Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 8 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION SERVICES, THE DOCUMENTATION, AND ALL SERVICES PERFORMED BY PROVIDER ARE PROVIDED “AS IS,” AND PROVIDER DISCLAIMS 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. PROVIDER DOES NOT WARRANT THAT THE APPLICATION SERVICES OR ANY OTHER SERVICES PROVIDED BY PROVIDER WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. PROVIDER’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Neither Provider, nor its third-party hosting service or software providers, shall have any liability whatsoever for the accuracy, completeness, or timeliness of the PARTICIPANT DATA, or for any decision made or action taken by Client in reliance upon any PARTICIPANT DATA.
9.2 Exclusions of Remedies. IN NO EVENT WILL PROVIDER BE LIABLE TO CLIENT 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 PROVIDER 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.
9.3 Limitation of Liability. UNLESS PROHIBITED BY LAW, THE CUMULATIVE LIABILITY OF PROVIDER TO CLIENT 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 FEES PAID TO PROVIDER BY CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.4 Essential Basis of the Agreement. Client acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 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.
10.1 Indemnification of Client. Provider agrees to indemnify, defend and hold harmless Client from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that the Application Services and/or the Documentation infringes such third party’s U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America, provided that Client promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Client agrees to permit Provider, at Provider’s sole discretion, to enable it to continue to use the Application Service or the Documentation, as applicable, or to modify or replace any such infringing material to make it non-infringing. If Provider determines that none of these alternatives is reasonably available, Client shall, upon written request from Provider, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim. This Section 10.1 shall not apply if the alleged infringement arises, in whole or in part, from (a) modification of the Application or the Documentation by Client, (b) combination, operation or use of the Application with other software, hardware or technology not provided by Provider, (c) use of a superseded or altered release of the Application or the Documentation, if such infringement would have been avoided by the use of a then-current release of the Application or the Documentation, as applicable, and if such then-current release has been made available to Client, or (d) related to the Client Brand (any of the foregoing circumstances under clauses (a), (b), (c), or (d) a “Client Indemnity Responsibility”). IN NO EVENT SHALL PROVIDER’S LIABILITY UNDER THIS SECTION 10.1 EXCEED CAP ON LIABILITY SET FORTH IN SECTION 8.2 and 8.3. THIS SECTION STATES PROVIDER’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
10.2 Client’s Indemnity Obligations. Client agrees to hold, harmless, indemnify, and, at Provider’s option, defend Provider from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from: (a) a Client Indemnity Responsibility, or (b) Client’s breach of any of its representations, warranties or covenants with respect to compliance with US Export Controls and Trade Sanctions, provided that Provider promptly notifies Client in writing of the claim, cooperates with Client, and allows Client sole authority to control the defense and settlement of such claim; provided that Client will not settle any third-party claim against Provider unless such settlement completely and forever releases Provider from all liability with respect to such claim or unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
10.3 Risk of Participation. Client acknowledges that Provider is not able, nor does it attempt, to determine the suitability or potential health related risks of the Virgin Pulse GO for individual Participants.
11.1 Term. The term of this Agreement will commence on the Effective Date and will expire at the end of the last Event purchased by Client (the “Term”), unless earlier terminated in accordance with this Section 10. The Term may be extended by the Client by purchasing additional Events. Termination of this Agreement shall not prejudice any rights of the Parties accrued prior to termination, including the Client’s obligation to pay the applicable Registration Fees.
11.2 Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) day period. Additionally, either Party may immediately terminate this agreement in the event that the other Party: (a) commits any dishonest or fraudulent act, or (b) behaves in a manner which, in the first Party’s reasonable opinion, is likely to adversely affect the reputation or public image of the other Party. Notwithstanding the foregoing, Provider may immediately terminate this Agreement without prior notice or the opportunity to cure if the Client’s material breach results in a violation US Export Controls and Trade Sanctions law.
11.3 Suspension of Access. Provider may suspend access to the Application Services in the event any undisputed amount due under this Agreement is not received by Provider within thirty (30) days from invoice.
11.4 Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (a) that the other Party becomes insolvent or unable to pay its debts when due; (b) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) the other Party discontinues it business; or (d) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
11.5 Effect of Termination. Upon any termination of this Agreement: (a) Client will immediately discontinue all use of the Application Service, the Documentation, and any Provider Confidential Information; (b) Client will delete any Provider Confidential Information from Client’s computer storage or any other media including, but not limited to, online and off-line libraries; (c) Provider will delete any Client Confidential Information from Provider’s computer storage or any other media including, but not limited to, online and off-line libraries; (d) return to Provider or, at Provider’s option, destroy, all copies of the Documentation and any Provider Confidential Information then in Client’s possession; and (e) promptly pay to Provider all amounts due and payable hereunder.
11.6 Survival. The provisions of Sections 2.2, 2.3, 4, 7, 8, 9, 10, and 11.6 will survive the termination of this Agreement.
12.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
12.2 Special Conditions. In addition to the terms contained in the body of this Agreement, additional special conditions may be included in attached Addenda. Should any inconsistency arise between the terms contained in the body of this Agreement and the special conditions, the special conditions will prevail.
12.3 Independent Contractors. In making and performing this Agreement, Client and Provider act and will act at all times as independent contractors, and, except as expressly set forth herein, 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. Neither Party shall act, represent or hold itself out as having the authority to act as the agent of the other or in any way bind or commit the other to any obligation.
12.4 Notices. All notices required by or relating to this Agreement will be in writing and may be served or given by any lawful means of service within the laws of the applicable jurisdiction, including without limitation hand delivery, certified mail, postage prepaid, to the Parties at their respective addresses set forth in the Order Form, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile and/or other electronic communications 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. In the event that either Party delivers any notice by means of facsimile transmission or other electronic means in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of 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 written notice to the sender.
12.5 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
12.6 Assignment; Delegation. Except in the case of merger or acquisition, neither party shall assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of the other Party, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.
12.7 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 herein, 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.
12.8 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such 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 other provisions of this Agreement invalid or unenforceable whatsoever.
12.9 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such 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.
12.10 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, Internet access outside of Provider’s control, war, terror, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material 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 ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.
12.11 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF RHODE ISLAND, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF RHODE ISLAND.
12.12 U.S. Government End-Users. Each of the 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 Documentation with only those rights set forth therein.
12.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
12.14 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.
12.15 Interpretation. The terms of this Agreement shall not be interpreted or construed to the disadvantage of a party because that party was responsible for its preparation.