Terms of Service
These Terms of Service are an agreement (“Agreement”) between Convexa, Inc. dba Datacoves, a Delaware corporation with an address at 612 Lynwood St., Thousand Oaks, CA 91360 (“Datacoves”) and the entity entering into an Order Form (“Customer”) referencing these Terms of Service to use the Datacoves Software-as-a-Service.
These Terms of Service govern Customer’s access to and use of the Datacoves Software-as-a-Service. Capitalized terms have the definitions set forth herein. By executing an Order Form that references this Agreement, Customer agree to these Terms of Service. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to this Agreement, in which case the term “Customer” shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with this Agreement, such individual must not accept this Agreement and may not use the Datacoves Software-as-a-Service. Customer and Datacoves may be referred to in this Agreement individually as a “Party” or collectively as the “Parties.”
This Agreement was last updated on June 15, 2022. It is effective as of the date on which Customer accepts it by executing an Order Form that references this Agreement.
1.1. “Authorized User” means those Customer employees, consultants, contractors, and agents who are authorized by Customer to access and use the Datacoves SaaS pursuant to this Agreement.
1.2. “Confidential Information” means “information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Recipient”), whether before or after the effective date of this Agreement and whether disclosed orally, in writing or through review of records, data, materials, facility visits or otherwise, that is designated as confidential or that reasonably should be understood by the Recipient to be confidential. The Datacoves SaaS and Documentation are the Confidential Information of Datacoves Customer Data is the Confidential Information of Customer.
1.3. “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Datacoves SaaS, including Personal Information. Customer Data does not include Resultant Data.
1.4. “Datacoves Software-as-a-Service” or “Datacoves SaaS” means Datacoves’ proprietary hosted technology solution and related materials including the Documentation, as well as any maintenance and support of the solution, to be provided in accordance with Datacoves’ standard support policy. For the avoidance of doubt, the Datacoves SaaS does not include Customer Data.
1.5. “Documentation” means Datacoves’ standard user manuals and guides regarding the operation and functionality of the Datacoves SaaS provided to Datacoves customers generally, either electronically or in hard copy form.
1.6. “Intellectual Property Rights” means any patent, copyright, trademark, trade secret, trade dress, inventions, discoveries, technology, know-how, confidential and proprietary information, logos, domain names, corporate names, together with all goodwill associated therewith, derivate works, or other intellectual property rights or proprietary rights arising under the laws of any jurisdiction.
1.7. “Order Form” means an order form approved in writing by both Parties describing Customer’s permitted access and use of the Datacoves SaaS and any Professional Services, the Fees for such items, and any other special terms and conditions related thereto.
1.8. “Personal Information” means information provided to Datacoves by or on behalf of Customer in accordance with this Agreement that: (i) identifies an individual (including, for example, names, physical addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, biometric, genetic, health, or health insurance data, and other personal identifiers). Unless otherwise provided by law, Customer’s business contact information is not by itself Personal Information.
1.9. “Professional Services” means professional services provided by Datacoves to Customer pursuant to an Order Form.
1.10. “Resultant Data” means data and information derived from Datacoves’ customers use of the Datacoves SaaS in an aggregated and anonymized manner, such as counts of number of employees; survey results; employee usage; and count of user logins.
2.1. In General. Datacoves shall provide the products and services specified in the applicable Order Form during the Term (defined below). Each Order Form shall include a description of products and services, any additional terms applicable to such services, and the fees for such services. Multiple Order Forms may be in effect at one time.
2.2. Use and Access to Datacoves SaaS. Subject to all terms and conditions of this Agreement, Datacoves hereby grants to Customer during the Term of this Agreement for its Authorized Users to access and use the Datacoves SaaS to process and manage Customer’s Data for Customer’s internal business purposes in accordance with the applicable Documentation, and pursuant to any scope of use restrictions in the Order Form (“Permitted Use”). Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.
2.2.1.Resultant Data. Notwithstanding anything to the contrary in this Agreement, Datacoves may monitor Customer’s use of the Datacoves SaaS and collect and compile Resultant Data. In no event will the Resultant Data contain any Personal Information or Customer’s Confidential Information. Customer acknowledges that Datacoves may compile Resultant Data based on Customer Data input into the Datacoves SaaS. For clarification, Datacoves uses Resultant Data to (i) compile statistical and performance information related to the provision and operation of the Datacoves SaaS; (ii) provide routine or customer-requested maintenance, repairs, analytical or diagnostic services related to the Datacoves SaaS or Datacoves services; or (iii) compile analytical and statistical information for purposes of developing and improving Datacoves products and services.
2.2.2. Restrictions on Use. Customer shall not, and shall not permit any third party to (i) copy, modify or create any derivative work of the Datacoves SaaS, (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Datacoves SaaS to any third party; (iii) damage, disassemble, de-compile or reverse engineer, or otherwise attempt to derive or gain access to the source code of the Datacoves SaaS; (iii) use the Datacoves SaaS for any purpose other than the Permitted Use, (iv) disclose the results of any benchmark testing relating to the Professional Services or Datacoves SaaS; or (v) use the Datacoves SaaS in a way intended to avoid incurring fees or exceeding usage limits.
2.2.3. Reservation of Rights. Datacoves reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Datacoves SaaS.
2.2.4. Third Party Software. The Datacoves SaaS integrates with and/or incorporates third party open source software (“Third Party Software”). As of the effective date of this Agreement, no Third Party Software incorporated into the Datacoves SaaS is subject to any license that Customer will need to accept in order to use the Services, including without limitation any licenses that would require any software or any other materials incorporating, incorporated into or used with such Third Party Software, in whole or in part (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making derivative works; or (C) be redistributable at no charge (“Third Party EULA”). If during the Term of this Agreement Datacoves incorporates any Third Party Software requiring a Third Party EULA, Datacoves shall provide Customer with such Third Party EULA in advance.
2.3.Professional Services. From time to time, Customer may order Professional Services from Datacoves, and any such Professional Services to be provided by Datacoves shall be described in an Order Form. Such Order Form shall identify the project scope, milestones, fees, specifications, deliverables, obligations of the Parties, completion criteria, and other critical information. Datacoves may from time to time in its discretion engage qualified, third-parties to perform Professional Services, and Datacoves shall be responsible for any such subcontractors as if they were Datacoves employees.
3.Term and Termination
3.1. Term. This Agreement will be effective upon the last date of signature set forth in the applicable Order Form and will continue for the period set forth in the applicable Order Form (the “Initial Term”), unless earlier terminated in accordance with the provisions set forth in Section 3.2. Upon expiration of the Initial Term, this Agreement will automatically renew for additional periods equal to the Initial Term (each, a “Renewal Term”) unless (i) earlier terminated in accordance with Section 3.2 or (ii) either Party provides written notice of its election not to renew at least sixty (60) calendar days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable (the Initial Term together with any and all Renewal Terms constitute the “Term”).
3.2. Termination for Cause. Either Party will have the right to terminate this Agreement if: (a) the other Party materially breaches this Agreement and such material breach has not been cured within thirty (30) days after written notice of breach to the other Party; or (b) the other Party terminates or suspends its business, makes an assignment for the benefit of creditors, or has wound up or liquidated, voluntarily or otherwise.
3.3. Effect of Expiration or Termination_. Upon expiration or earlier termination of this Agreement: (i) Customer shall immediately discontinue use of the Datacoves SaaS or any other Datacoves products provided hereunder; (ii) any access or license granted to Customer hereunder shall immediately terminate; (iii) and Customer shall delete, destroy, or return all copies of any Datacoves Confidential Information and certify in writing to Datacoves that all Datacoves Confidential Information has been deleted, destroyed or returned; and (iv) Datacoves shall delete, destroy, or return all copies of the Customer Data and certify in writing to Customer that the Customer Data has been deleted, destroyed or returned. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
3.4. Survival. Any provision that, in order to give proper effect to its intent, should survive termination of this Agreement, will survive the termination of this Agreement, including but not limited to Sections 1 (“Definitions”), 4 (“Protection of Information”), 5 (“Ownership”), 8 (“Indemnification”), 9 (“Limitation of Liability”), and 10 (“Miscellaneous”).
4.Protection of Information
4.1. Confidential Information
4.1.1. Duties. Each Recipient shall maintain the Confidential Information of the Disclosing Party as confidential and will not use it in any way, except as required to provide or receive services and products under this Agreement, as applicable, nor disclose to any third party, except to Recipient’s employees, consultants, contractors, attorneys, accountants, auditors, banks and other advisors (collectively, “Representatives”) who have a need to know such Confidential Information for purposes of Recipient’s performance of its obligations under this Agreement and who have been informed of and are obligated to comply with the confidential nature of such information and of the terms of this Agreement. Each Recipient shall be responsible for any breach of this Agreement by any of its Representatives, and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any of Disclosing Party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information, but in no case less than reasonable care. For the avoidance of doubt, this Agreement shall be considered Confidential Information.
4.1.2. Exceptions. The obligations of the Recipient specified above will not apply to the extent any Confidential Information of the Disclosing Party (a) is known to Recipient prior to receipt from Disclosing Party other than as a result of Recipient’s breach of any legal obligation; (b) becomes known (independently of disclosure by Disclosing Party) to Recipient directly or indirectly from a source having the legal right to disclose such Confidential Information; (c) is or becomes publicly known, except through a breach of this Agreement by Recipient; or (d) is required to be disclosed by Recipient to comply with applicable laws or governmental regulations; provided that Recipient gives Disclosing Party reasonable prior written notice of such disclosure. Nothing herein will prohibit Datacoves from keeping reasonable copies of Customer’s Confidential Information consistent with Datacoves’ internal backup and record retention policies.
4.1.3. Injunctive Relief; Return. Each Party agrees that a breach of this Section 4.1, may result in the substantial likelihood of irreparable harm and injury to the other Party for which monetary damages alone would be an inadequate remedy, and for which damages would be difficult to accurately measure. Accordingly, each Party agrees that the other Party has the right, in addition to any other remedies available to it, to seek immediate injunctive relief as well as other allowable equitable relief for any breach or potential breach of this Section 4.1 without posting bond. Upon the expiration or termination of this Agreement, each Party shall return (or if requested by the Disclosing Party, destroy) all Confidential Information, documents, manuals, electronic data and other materials provided by the Disclosing Party to the Recipient.
4.2. Data Security
4.2.1. Datacoves Obligations. Datacoves will employ all reasonable physical, administrative, and technical safeguards necessary to protect against any unauthorized access to or use of the Customer Data or unauthorized communications between the Datacoves SaaS and Customer’s browser. Notwithstanding the foregoing, Datacoves shall not be liable to Customer or any individual for any losses arising out of the unauthorized access to or use of any Customer Data, services or the Datacoves SaaS resulting from the use of Customer’s or any Authorized User’s credentials, unless such use is as a result of any gross negligence or willful misconduct of Datacoves.
4.2.2. Customer Obligations. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Datacoves services; (c) Customer’s information technology infrastructure and systems; (d) the security and use of Customer’s and its Authorized Users’ credentials; and (e) all access to and use of the Datacoves SaaS directly or indirectly by or through the Customer’s or its Authorized Users’ credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use; and (f) compliance with applicable data laws and obligations relating to Customer Data. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Datacoves SaaS.
5.1. Datacoves Ownership_. Customer acknowledges and agrees that Datacoves or its licensors own and will retain all Intellectual Property Rights in and to the Datacoves SaaS, any Datacoves software, Datacoves technology, the Documentation, any derivative works to such items made by any entity, and all Resultant Data.
5.2. Customer Ownership. As between Customer and Datacoves, Customer is the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 5.3 below.
5.3. Consent to Use Customer Data. Customer hereby grants to Datacoves, its affiliates, agents, successors and assigns, a non-exclusive, worldwide, royalty-free, non-transferable, non-sublicensable, revocable right and license to use the Customer Data during the Term as necessary for Datacoves to provide the Datacoves SaaS and Professional Services to Customer under this Agreement.
5.4. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Datacoves by mail, email, telephone, or otherwise, suggesting or recommending changes to the Datacoves SaaS, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“_Feedback_”), Datacoves is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Datacoves on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Datacoves is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Datacoves is not required to use any Feedback.
6.1. Fees. Customer shall pay to Datacoves all fees in U.S. dollars as specified in any Order Form (the “Fees”). Datacoves will submit invoices to Customer in electronic format, and Customer will pay all undisputed amounts on such invoices within thirty (30) days after receipt, by check or wire transfer according to Datacoves’ instructions. All payments are non-refundable, except as expressly set forth in this Agreement. Fees are subject to increase annually, and such increase shall not exceed ten percent (10%) over the prior year’s Fees for the applicable products or services.
6.2. Taxes. All Fees charged under this Agreement are exclusive of taxes, duties or similar governmental assessments including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”) and Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on the net income of Datacoves, unless Customer provides to Datacoves a valid tax-exempt certificate.
6.3. Expenses. If set forth in an Order Form, or with prior written approval from Customer, Customer shall pay for all reasonable costs and expenses (including reasonable travel and out-of-pocket expenses) incurred by Datacoves related to its performance of this Agreement.
6.4. Late Fees. If Customer fails to pay undisputed invoices by the applicable due date, without limiting any other rights and remedies that may then be available to Datacoves, Datacoves will have the right to assess late fees in an amount equal to the lesser of one and a half percent (1.5%) per month or the maximum amount allowed under applicable law.
7.Limited Warranties; Disclaimer
7.1. Datacoves Warranties. Datacoves represents and warrants to Customer that (a) it is duly organized and in good standing as a corporation or other legal entity; (b) it has the authority to enter into and perform its obligations under this Agreement; (c) Datacoves will perform the Professional Services using personnel of required skill in a professional and workmanlike manner; (d) Datacoves shall comply with all applicable laws in performing hereunder; and (e) the Datacoves SaaS will substantially conform to the Documentation.
7.2. Exclusive Remedies. In the event of a breach of the warranties contained in Section 7.1(c) that is verified by Datacoves, Customer’s sole and exclusive remedy shall be for Datacoves to re-perform or correct the affected Professional Services or to credit or refund (as appropriate) the fees for such non-conforming Professional Services. In the event of a breach of the warranty contained in Section 7.1(e), Customer’s sole and exclusive remedy shall be for Datacoves, subject to Customer promptly notifying Datacoves in writing of such failure, at its sole option, either: (i) repair or replace the Datacoves SaaS or any non-complying part thereof; or (ii) refund the unearned Fees paid for the Datacoves SaaS or any non-complying part thereof, subject to Customer’s ceasing all use of, in Datacoves’ discretion, the Datacoves SaaS or any non-complying part thereof.
7.3. Disclaimer of Any Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 7.1, DATACOVES MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE DATACOVES SAAS OR PROFESSIONAL SERVICES, AND DATACOVES DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. ADDITIONALLY, EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 7, DATACOVES MAKES NO WARRANTY OF ANY KIND THAT THE DATACOVES SAAS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, BE FREE OF HARMFUL CODE, OR ERROR FREE. DATACOVES EXPRESSLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR (A) THE ACCURACY OR COMPLETENESS OF ANY DATA INPUT BY CUSTOMER OR AUTHORIZED USERS INTO THE DATACOVES SAAS, OR (B) CUSTOMER’S COMPLIANCE WITH APPLICABLE LAWS.
7.4. Customer Representations and Warranties. Customer represents and warrants to Datacoves that: (i) it is duly organized and in good standing as a corporation or other legal entity; (ii) it has the authority to enter into and perform its obligations under this Agreement; and (iii) Customer owns or otherwise has and will have the necessary rights and consents in the Customer Data, so that, as received by Datacoves and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.
8.1. Datacoves Indemnification. Datacoves shall indemnify, hold harmless, and, at Customer’s option, defend, Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) incurred (“Losses”) by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) alleging the Datacoves SaaS or any use of the Datacoves SaaS, or any part thereof, in accordance with this Agreement, infringe or misappropriate such third party’s U.S. intellectual property rights; provided that Customer promptly notifies Datacoves in writing of the claim, cooperates with Datacoves, and allows Datacoves sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Datacoves shall, at Datacoves’ sole discretion, modify or replace the Datacoves SaaS or any part thereof, to make it non-infringing, or obtain the right for Customer to continue use. If Datacoves determines that neither alternative is reasonably available, Datacoves may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 8.1 will not apply to the extent that the alleged infringement arises from: (1) use of the Datacoves SaaS or any part thereof in combination with data, software, hardware, equipment, or technology not provided by Datacoves or authorized in advance by Datacoves in writing; (2) modifications to the Datacoves SaaS, or any part thereof not made by Datacoves; or (3) Datacoves’ use of any Customer Data. THIS SECTION 8.1 SETS FORTH CUSTOMER’S SOLE REMEDIES AND DATACOVES’ SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE DATACOVES SAAS INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
8.2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Datacoves’ option, defend Datacoves from and against any Losses incurred by Customer resulting from any Third-Party Claim (i) alleging the Customer Data, or Datacoves’ use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights or any privacy or other rights of a third party; (ii) based on or resulting from Customer’s or any Authorized User’s use of the Datacoves SaaS or any part thereof in a manner not authorized by this Agreement; or (iii) that Customer has violated any applicable laws; in each case provided that Datacoves promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim.
8.3. Notice; Control. An indemnifying Party’s (the “Indemnifying Party’s”) indemnification obligations above are conditioned upon: (i) the Party to be indemnified (the “Indemnified Party”) providing the Indemnifying Party with prompt (but no less than thirty (30) calendar days’) written notice of the existence of any action; and (ii) the Indemnified Party cooperating fully with the Indemnifying Party, at the Indemnifying Party’s sole cost and expense, in the defense of any action. An Indemnifying Party shall not accept any settlement which imposes liability not covered by these indemnifications or place restrictions on the Indemnified Party without the Indemnified Party’s prior written consent, which consent will not be unreasonably withheld or delayed. The Indemnified Party may participate in the defense of any claim through its own counsel at its own expense.
9. Limitation of Liability
9.1. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, INCLUDING LOST BUSINESS, REVENUES, OR PROFITS; LOSS OF GOODWILL OR REPUTATION; IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
9.2. IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO DATACOVES UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.3. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS AND CAPS IN SECTION 9.2 ABOVE SHALL NOT APPLY TO ANY LIABILITY OR DAMAGES ARISING OUT OF OR RELATED TO A PARTY’S (i) GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, (ii) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 4.1, OR (iii) INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.
10.1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference (including but not limited to Order Forms) and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Order Forms, any related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Order Forms; and (iii) third, any other documents incorporated herein by reference.
10.2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth in the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery; nationally recognized overnight courier (with all fees pre-paid); email (with confirming reply email acknowledging receipt); or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by or delivery to the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
10.3. Force Majeure. Neither Party will be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority.
10.4. Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10.5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
10.6. Governing Law; Waiver of Jury Trial. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the federal courts located in Los Angeles, California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY ORDER FORMS, EXHIBITS, OR OTHER MATERIALS ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.7. Assignment. Neither Party shall assign this Agreement without the prior written consent of the other Party; provided, that either Party may transfer this Agreement in connection with a merger, consolidation, sale of substantially all assets, or operation of law, without the other Party’s prior written consent. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
10.8. Relationship of the Parties. Datacoves and Customer are independent contractors pursuant to this Agreement. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party.
10.9. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Datacoves SaaS outside the U.S.
10.10. Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld.