Provider offers services to assist Customers with hiring processes. Subject to the terms of the Agreement, Provider shall provide Customer with those services and modules specified in the Cover Page of the Agreement (the “Services”). The Services may only be used and accessed by Customer's employees, consultants,contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement (“Authorized Users”).
Access and Use.
Provision of Access. Subject to the terms and conditions of this Agreement and conditioned on Customer's payment of Fees (as defined below), Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein and solely as set forth in the Documentation. Such use is limited to Customer's own hiring processes. Customer hereby consents to receiving text messages and calls from Provider or any third party in connection with the Services at any phone number provided to Provider by Customer or any Authorized User. The term "Documentation" means Provider's user manuals, handbooks, and guides relating to the Services provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the Services available at https://admin.xor.ai. Customer acknowledges and agrees that Provider may alter, modify, add,discontinue, automatically update, or otherwise change the Provider IP from time to time.
Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(g)) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users or third parties to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) work around or attempt to work around any technical restrictions in the Services; (v) remove any proprietary notices from the Services or Documentation; (vi) transmit any material that contains viruses, Trojan horses, spyware, worms or any other malicious, harmful, or deleterious programs; (vii) use the Services in any manner that causes a telecommunications provider to complain about your use to Provider or materially violates industry standards, policies and applicable guidelines published by (x) the CTIA (Cellular Telecommunications Industry Association), (y) the Mobile Marketing Association, or (z) any other generally recognized industry association; or (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses 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 Provider IP.
Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any Authorized End User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any Authorized End User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized End User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's use of the Services and collect and compile Aggregated Statistics (as defined below). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law. The term "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
Customer is a commercial company or other business entity which is responsible and liable for all uses of the Provider IP, the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, 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. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions. Customer is solely responsible for any travel, accommodations, computer or other equipment, telecommunications, and expenses required for Customer or its Authorized Users to access or use the Services.
Legal Compliance. The Services include general purpose tools that may assist Customer in evaluating, screening, and communicating with potential employees and other potential service providers of Customer (“Applicants”). Provider may provide advice or guidance on questions to be used in the screening process, however, Customer hereby acknowledges and agrees that Customer is solely and exclusively responsible for the content of any questions or other materials used in the screening or hiring process and for determining which Applicants will be accepted or rejected. Customer is solely responsible for any recruiting, hiring, or employment-related process, action or decision, and shall ensure that any text message, communication, process, action, or decision does not violate any law or regulation. Customer is solely responsible for and shall ensure that use or disclosure of any Customer Data in accordance with this Agreement complies with applicable laws and regulations, including any required notices or consents. Without waiving the generality of the foregoing, the Customer agrees as follows:
Customer must comply with all laws and regulations governing communications to or from Applicants, including the U.S. CAN-SPAM Act, U.S. Telephone Consumer Protection Act (“TCPA”), Canadian Anti-Spam Legislation, S.C. 2010, c. 23, and any other applicable federal, state, local or foreign laws.
Customer shall obtain all necessary consents or approvals required to communicate with an Applicant under all applicable laws. Customer may not use the Services to send unsolicited text messages (sometimes called “spam”).
Customer shall ensure that use of the Services does not generate a number of spam-related or other complaints in excess of industry norms, as determined in Provider’s good faith judgment.
Customer shall not, and shall not permit any Authorized User to: (i) use the Services to harvest, collect, gather, or assemble information or data regarding any job candidate or other person without his or her consent; (ii) impersonate any other person or entity, or communicate in any deceptive manner; (iii) access or copy any data or information of a job candidate or other person without his or her consent; (iv) knowingly interfere with or disrupt the integrity or performance of the Services or the data contained therein; (v) harass or interfere with another Provider customer’s use and enjoyment of the Services; (vi) knowingly interfere in any manner with the operation of the Services, or the hardware and network used to operate the Services; (vii) or send any text message that is slanderous, libelous, defamatory, obscene, or offensive.
Both during and after the Term, Customer shall maintain a list of and promptly comply with any request by an Applicant or any other person or entity not to receive communications from Customer (an “Unsubscribe Request”). Provider will make a reasonable effort to identify Unsubscribe Requests from Applicants, block messages by means of the Services from Customer to those Applicants, and communicate those Unsubscribe Requests periodically to Customer; provided nothing in the foregoing sentence shall be deemed to relieve Customer from its sole responsibility for complying with all Unsubscribe Requests both during and after the Term.
Customer shall at all times comply with Provider’s “Messaging Policy” attached hereto as Attachment C.
Customer is solely responsible for ensuring that their use of the Services is in compliance with all applicable laws, including GDPR (Regulation EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation). Provider does not warrant that Customer’s use of the Services will not violate the Americans with Disabilities Act. Customer acknowledges and agrees that when personal data of data subjects under GDPR is processed, then Customer, in its capacity of controller under GDPR is responsible for ensuring compliance of its actions with all requirements of GDPR. When processing personal data under GDPR, Provider:
processes the personal data only on documented instructions from Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by EU or Member State law to which Provider is subject; in such a case, Provider shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
ensures that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
takes all security of personal data measures required pursuant to Article 32 of GDPR;
respects the required conditions for engaging another processor;
taking into account the nature of the processing, assists Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer's obligation to respond to requests for exercising the data subject's rights;
assists Customer in ensuring compliance with the security of personal data obligations pursuant to Articles 32 to 36 of GDPR taking into account the nature of processing and the information available to Provider;
at the choice of Customer, deletes or returns all the personal data to Customer after the end of the provision of services relating to processing, and deletes existing copies unless EU or Member State law requires storage of the personal data;
makes available to Customer all information necessary to demonstrate compliance with the obligations laid down in GDPR and allow for and contribute to audits, including inspections, conducted by Client or another auditor mandated by Client;
immediately informs Customer if, in its opinion, an instruction infringes GDPR or other Union or Member State data protection provision;
immediately informs Customer if it receives erasure or other request by data subject under GDPR.
The parties to this agreement shall apply in their relations Standard contractual clauses for the purposes of Art. 28 (3) of Regulation 2016/679 (GDPR), reflected by the parties in Attachment E, which is an integral part of the present agreement. Customer acknowledges and agrees that when personal data of data subjects under GDPR are processed, then Customer, in its capacity of controller under GDPR is responsible for notifying data subjects about its business activities, including related personal data processing, that takes place while using the Services. In this regard Provider offers the opportunity for Customers to provide hyperlinks to their own privacy policies or similar documents which would appear in the interface of the Services which involve interaction with personal data subjects
Third-Party Products. Provider may from time to time make available, enable, or allow access or linking by Customer to products, applications, services, and web sites provided by other persons or entities (each, a “Third-Party Products”). Moreover the Services may offer integrations with various Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. Provider does not warrant or support Third-Party Products and disclaims all liability for such products or services. If you install or enable any Third-Party Products, you acknowledge that Provider may allow the vendors of those products and services to access Customer Data as required for the interoperation and support of the interoperability of those Third-Party Products with the Services. Customer explicitly authorizes Provider, in its capacity of data processor under GDPR and while providing the Services, to engage other data processors, incl. third party messaging applications, which provide system environment for use of Provider’s Services. Provider shall inform Customer of any intended changes concerning the addition or replacement of other processors, thereby giving Customer the opportunity to object to such changes.
Customer may engage Provider from time to time in the future to provide additional services by entering into a Statement of Work signed by both parties that references this Agreement and sets forth the applicable fees, any applicable terms, and the additional services to be provided (the “Additional Services”). All Statements of Work entered into in accordance with this Section 4 shall be subject to the terms of this Agreement.
Fees and Payment.
Fees. Customer shall pay Provider the fees ("Fees") as set forth in the Agreement without offset or deduction. Provider may adjust the Fees for any Renewal Term (as defined below) by providing Customer with written notice of the new Fees at least sixty days prior to the end of the then-current Initial or Renewal Term. They must be paid in advance of the applicable year of Service. All invoices for payment on an annual basis or for Additional Services are due within thirty days of the date of receipt of the invoice. If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for seven days or more, Provider may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer's records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer's underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as "confidential" provided that, if not marked, a reasonable person would know the information was confidential based on the nature of the information or manner of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) 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 (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Provider IP. The term "Provider IP" means the Services, the Documentation, and any and all intellectual property provided or made available to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but does not include Customer Data. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
Customer Data. The term "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby grants to Provider a perpetual, royalty-free, worldwide license to use the Feedback in any manner in Provider’s sole discretion.
Indemnification. Customer shall defend, indemnify, and hold harmless Provider and its affiliates, officers, directors, shareholders and agents (each, an “Indemnitee”) against any damages, attorneys’ fees, and other costs and expenses incurred by any of such Indemnitees in connection with any third-party allegation, claim, demand, proceeding, lawsuit or legal action: (i) alleging that Customer Data or the use or disclosure thereof violates any applicable laws or any right of any third party; (ii) alleging that Customer’s trademarks infringe or violate any intellectual property right or any other right of a third party; (iii) arising out of Customer’s breach of Section 3 (Customer Responsibilities) above; or (iv) arising out of a violation by Customer of its obligations under this Agreement.
Limited Warranty and Warranty Disclaimer.
Provider warrants that the Services will conform in all material respects to the Documentation when accessed and used in accordance with the Documentation and the Agreement. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), THE SERVICES, ADDITIONAL SERVICES, AND THE PROVIDER IP ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, ADDITIONAL SERVICES, OR PROVIDER IP, 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, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Limitations of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE PROVIDER IP, OR THE ADDITIONAL SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, AND OTHERWISE, FOR ANY:
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES;
INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS;
LOSS OF GOODWILL OR REPUTATION;
USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY;
COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PROVIDER IP, OR THE ADDITIONAL SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Term and Termination.
Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect until three years from such date (the "Initial Term"). This Agreement will automatically renew for additional successive three-year terms unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least thirty days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
Termination. In addition to any other express termination right set forth in this Agreement:
Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than seven days after Provider's delivery of written notice thereof; or (B) breaches any of its obligations under Section 3(c);
Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice specifying the breach in reasonable detail;
Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
Effect of Expiration or Termination.Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Services and the Provider IP and. 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
Survival.This Section 10(d) and Sections 2, 3, 5, 6, 7(b), 8, 9, and 11 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Entire Agreement. This Agreement, together with any other documents incorporated herein by reference 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 this Agreement, any SOW, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; (ii) second, the SOW except to the extent the SOW expressly states that it controls over a specifically referenced section of this Agreement; and (iii) third, any other documents incorporated herein by reference.
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 on the cover page of this Agreement (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), facsimile (with confirmation of transmission) 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 the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
Amendment and 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.
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 effect 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.
Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder may be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in New York County, New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Any legal matters, related to personal data of data subjects under GDPR, shall be governed by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation).
Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. 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.
Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or 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), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
US Government Rights. Each of the Documentation and the software components that constitute the Services 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. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 3(c), would cause the other Party irreparable harm for which monetary damages might not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.