Avnio Master Service Agreement
This is a master service agreement (“Agreement”) between Avnio Ltd, registered in England, having its principal place of business at International House, 24 Holborn Viaduct, London, United Kingdom, EC1A 2BN (“Company”), and the legal entity identified as customer in the corresponding order document referencing this Agreement (“Customer”).
This Agreement will be effective as of the date that Customer first accepts this Agreement (“Effective Date”). This Agreement can be accepted by (i) executing an order document that references this Agreement; (ii) executing this Agreement.
In consideration of the mutual promises and covenants contained in this Agreement, the parties agree as follows:
“Documentation” means the online documentation for integrating and using the SaaS Service, if any, accessible via the Company website, as updated from time to time.
“Order Form” means an order document or online order entered into between Customer and Company specifying products or services to be provided hereunder, including any addenda or supplements.
“SaaS Service” means the products and services that are ordered by Customer under an Order Form, or provided to Customer under a free trial or Free Services, and made available online by Company, including associated offline or mobile components, as described in the Documentation.
“User” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a legal entity, an individual whom Customer enables to use the SaaS Service.
2. Company Responsibilities
2.1 Provision of the SaaS Service. Company will make the SaaS Service available to Customer in accordance with the following: (i) this Agreement; (ii) any Order Forms under this Agreement; (iii) the service level agreement as specified at https://avnio.com/legal/sla (“SLA”); (iv) the data security exhibit as specified at https://avnio.com/legal/security-exhibit (“Security Exhibit”); (v) the data processing addendum including cross-border data transfer as specified at https://avnio.com/legal/dpa (“DPA”), subject to the “Protection of Customer Data” section; (vi) the Documentation. If the SLA, the Security Exhibit or the DPA are separately executed or attached as an exhibit hereto, such versions will prevail over the online versions indicated above.
2.2 Provision of Technical Support. Company will provide standard technical support for the SaaS Service at no additional cost or upgraded technical support if purchased by Customer (“Technical Support”). Company offers second level of support, the first level being the support offered by the Customer to its Users. Technical Support will be provided in accordance with the following: (i) this Agreement; (ii) any Order Forms under this Agreement; (iii) the technical support exhibit as specified at https://avnio.com/legal/support-exhibit (“Technical Support Exhibit”). If the Technical Support Exhibit is separately executed or attached as an exhibit hereto, such version will prevail over the online version indicated above.
2.3 Laws and Regulations. The Company will comply with the laws and regulations that apply generally to Company’s provision of the services under this Agreement (i.e. without regard for the particular use by Customer).
2.4 Protection of Customer Data. “Customer Data” means all electronic data submitted by Customer and the Users to the SaaS Service. Company will maintain appropriate technical and organizational measures for protection of the security, confidentiality and integrity of Customer Data, as described in the Security Exhibit. To the extent that Company processes Customer Data containing Personal Data (as defined in the DPA) from the European Economic Area (EEA), the United Kingdom or Switzerland, the terms of the DPA will apply and are hereby incorporated by reference.
2.5 Use of SaaS Service Metadata and Anonymized Data. “SaaS Service Metadata” means metadata related to Customer’s usage of the SaaS Service, such as usage statistics, tags, permissions, etc. “Anonymized Data” means Customer Data that cannot be used to identify a specific individual (e.g. because any personal data such as names, addresses, or phone numbers have been removed or replaced). SaaS Service Metadata and Anonymized Data may be processed by Company for internal business purposes, for example, to support proper functioning, improvement, or enhancement of the SaaS Service, or to provide support, in compliance with all applicable laws, including data protection laws.
2.6 Free Trials. To the extent Company makes available free trials of the SaaS Service, then notwithstanding anything to the contrary in this Agreement, the following will apply: (i) free trials are free of charge; (ii) Company may terminate a free trial in its sole discretion without notice at any point in time; (iii) free trials end either at their end date, when Customer purchases a subscription, or when Company terminates the free trial; (iv) free trials may only be installed in development or testing environments, and may only be used for evaluation purposes; (v) Company will have no obligation to comply with the SLA, the Security Exhibit, or the Technical Support Exhibit; (vi) any Customer Data or configuration of the SaaS Service may be lost at the end of the free trial.
2.7 Free Sevices. “Free Services” means any SaaS Service that Company makes available to Customer free of charge. Free Services do not include any free trials. To the extent Company makes available Free Services to Customer, then notwithstanding anything to the contrary in this Agreement, the following will apply: (i) Free Services are free of charge up to certain limits as may be described in the Documentation; usage over these limits requires Customer’s purchase of the SaaS Service; (ii) Company may terminate Free Services in its sole discretion without notice at any point in time; (iii) Company will have no obligation to comply with the SLA, the Security Exhibit, or the Technical Support Exhibit; (iv) any Customer Data or configuration of the Free Services may be lost upon termination of the Free Services.
2.8 No liability for Free Trials or Free Services. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE FREE SERVICES AND THE SAAS SERVICE DURING A FREE TRIAL ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND COMPANY WILL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY WITH RESPECT TO THE FREE SERVICES OR THE SAAS SERVICE UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE COMPANY’S LIABILITY WILL NOT EXCEED £1,000.00.
3. Use of the SaaS Service
3.1 Subscriptions. The SaaS Service is purchased as a subscription for the term stated in the applicable Order Form. Fees are calculated as described in the applicable Order Form (for example, they may be based on actual usage, or on the number of users). Additional subscriptions may be purchased during a subscription term. Such additional subscriptions will be at the pricing of, and coterminous with, the then already existing quantities.
3.2 Usage Limits. The SaaS Service may be subject to user or usage limits specified in an Order Form or the Documentation. If Customer exceeds such a limit, Company may work with Customer to seek to reduce Customer’s users or usage so that it conforms to that limit. If Customer is unable or unwilling to do so, Customer will pay any related invoice in accordance with the section “Fees and Payment” below, and will execute an Order Form for additional quantities upon Company’s request.
3.3 Suspension for Breach. Without limiting any other remedies under this Agreement, if Customer’s use of the SaaS Service does not conform with this Agreement and its subscription under the applicable Order Form, in particular if Company reasonably deems that the usage of the SaaS Service by Customer may threaten the security, integrity or availability of the SaaS Service, Company may restrict or suspend Customer’s usage until any such non-conformance has been eliminated. The following applies to such right: (i) it will not limit Company’s other rights or remedies; (ii) Company will provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension where commercially reasonable; (iii) Company will not incur any liability to Customer for exercising such right.
3.4 Non-Company Products. “Non-Company Products” means third-party applications, data, services or products that are (i) optional and not required to run the SaaS Service; (ii) for use in connection with the SaaS Service; (iii) licensed, sold or provided by their provider rather than the Company. Company may resell or otherwise make available Non-Company Products. The following applies to Non-Company Products: (i) the acquisition of Non-Company Products will be between Customer and the provider only; (ii) Company makes no warranties and assumes no liability in connection with Non-Company Products; (iii) Company does not guarantee that the SaaS Service will remain compatible with Non-Company Products (if, for example, the Non-Company provider ceases to make the Non-Company Product available for interoperation with the SaaS Service in a manner that’s acceptable to Company.)
4. Customer Responsibilities
4.1 Usage Responsibilities. Customer will: (i) use the SaaS Service only in accordance with this Agreement, all Order Forms, applicable laws and regulations, and the Documentation; (ii) be responsible for all activities that occur under Customer’s User accounts; (iii) be responsible for the accuracy, quality and legality of Customer Data, and the means by which Customer acquired Customer Data; (iv) to the extent the SaaS Service has User accounts, use commercially reasonable efforts to prevent unauthorized access to the SaaS Service, notify Company promptly of any unauthorized access, and ensure that Users safeguard their accounts, use strong passwords and use the SaaS Service only under their individual account. Customer agrees that its purchases are not contingent on the delivery of any future functionality of the SaaS Service, and that in order to use the SaaS Service, certain minimum system requirements may apply as further described in the Documentation.
4.2 Usage Restrictions. Customer will not: (i) except as otherwise agreed in writing, make the SaaS Service available to anyone other than Customer or its Users, or use it for the benefit of anyone other than Customer (in particular, sell, resell, license, sublicense, distribute, rent or lease the SaaS Service, or include it in a service bureau or outsourcing offering); (ii) attempt to gain, or allow anyone to gain, unauthorized access to the SaaS Service; (iii) use the SaaS Service in a way that circumvents a contractual user or usage limit, or mirror any part of the SaaS Service (iv) use the SaaS Service to store or transmit malicious code (i.e. code, files, scripts and the like intended to do harm, including viruses, worms, time bombs and Trojan horses), any material that infringes upon third-party intellectual property or privacy rights, is libelous, or is otherwise unlawful or tortious; (v) interfere with the integrity or performance of the SaaS Service; (vi) disassemble, reverse engineer, decompile, modify, copy, or create derivative works based on the SaaS Service or any part thereof, or on any of Company’s other intellectual property rights.
4.3 Customer Applications. “Customer Application” means any application created or used by or on behalf of Customer that uses the API for the purposes of accessing certain functionality provided by the SaaS Service. “API” means the application programming interface(s) used by or on behalf of Customer to access the SaaS Service, to the extent ordered by Customer under an Order Form, or provided to Customer under a free trial or as part of Free Services. Customer will be solely responsible for any Customer Application. In particular, Customer will be responsible for (i) providing technical support and warranty for any Customer Application; (ii) ensuring that the Customer Application does not infringe upon the rights of any third party; (iii) ensuring that the Customer Application complies with this Agreement, all Order Forms, all applicable laws and regulations, and the Documentation. Company will not be responsible for any SaaS Service downtime, issues or other performance issues to the extent attributable to a Customer Application. The definition of ‘User’ herein will include individuals who use the SaaS Service via a Customer Application.
4.4 Third-Party Integrators. “Third-Party Integrator” means a third party that integrates a Customer Application into an application created or used by or on behalf of that third party. Customer will be fully responsible for any Third-Party Integrator’s compliance with this Agreement, and any breach of this Agreement by a Third-Party Integrator will be deemed to be a breach by Customer. Company has no relationship with individual Third-Party Integrators, and Customer will address any claims raised by Third-Party Integrators directly.
5. Fees and Invoicing
5.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise stated in an Order Form; (i) fees will be paid annually in advance; (ii) fees paid are non-refundable; (iii) payment obligations are non-cancellable; (iv) purchased quantities or subscription levels (if applicable) cannot be decreased during the subscription term.
5.2 Invoicing. Customer will provide complete and accurate billing, contact, and (where applicable) credit card information and notify Company of any changes. Except as otherwise stated in an Order Form; (i) Company will invoice Customer electronically in advance; (ii) invoiced amounts are due net 30 days from the invoice date; (iii) where the Order Form states that payment will be by credit card, charges will be made in advance.
6. Proprietary Rights
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company, its Affiliates, and its licensors reserve all of their right, title and interest in and to the SaaS Service, including all of their related intellectual property rights (including domain names, trademarks and service marks, works of authorship, technology, software, hardware, algorithms, products, processes, know-how, techniques, trade secrets, designs, inventions and other tangible or intangible technical material or information). No rights are granted to Customer other than as expressly specified in this Agreement.
6.2 License by Customer to Use Feedback. Customer or Users may provide to Company suggestions, enhancement requests, or other feedback relating to the SaaS Service (“Feedback”). Customer hereby grants to Company and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use Feedback and incorporate Feedback.
7. Representations, Warranties and Disclaimers
7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 Company Warranties. Company warrants the following during an applicable subscription term: (i) this Agreement, the Order Forms and the Documentation will accurately describe the applicable technical and organizational measures for protection of the security, confidentiality and integrity of Customer Data; (ii) Company will not materially decrease the overall security of the SaaS Service; (iii) the SaaS Service will perform materially in accordance with the applicable Documentation; (iv) subject to the “Non-Company Products” section, Company will not materially decrease the overall functionality of the SaaS Service. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Term and Termination
8.1 Term of Agreement. This Agreement starts on the date that Customer first accepts this Agreement and continues until all subscriptions under this Agreement have expired or have been terminated.
8.2 Term of Subscriptions. The term of each subscription will be as specified in the applicable Order Form.
8.3 Renewal. Subscriptions will automatically renew for additional subscription terms, unless either party gives the other written notice at least 30 days before the end of the relevant subscription term. The auto-renew subscription terms will be equal to the expiring subscription term or one year (whichever is shorter).
8.4 Renewal Pricing. The fees for each renewal subscription term will generally be the same as the fees for the immediately prior subscription term, subject to the following: (i) Company has the option to apply a price increase corresponding to the higher of 1% and an increase in the consumer price index applicable to Company’s principal place of business, since the start of the prior subscription term; (ii) If the pricing for the prior subscription term was promotional or one-time, the renewal pricing will be at Company’s applicable list price in effect at the time of the renewal; (iii) any renewal in which subscription volume or subscription length has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
8.5 Termination for Cause. Either party may terminate this Agreement and/or any Order Form for cause as follows: (i) upon 30 days written notice of a material breach if such breach remains uncured at the expiration of such period; (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.6 Effect of Termination. Upon termination or expiration of this Agreement; (i) the rights and licenses granted to Customer under this Agreement will automatically terminate; (ii) Customer will uninstall and delete any Company provided software from all Customer environments; (iii) either party will destroy any Confidential Information in its possession or control or, upon request, return it to the Disclosing Party.
8.7 Refund or Payment upon Termination. The following will apply with regard to refunds or payments of fees in the event of termination in accordance with this Agreement: (i) if this Agreement is terminated by Customer, Company will refund any prepaid but unused fees covering the remainder of the subscription term of all Order Forms; (ii) if this Agreement is terminated by Company, Customer will pay any unpaid fees covering the remainder of the subscription term of all Order Forms, to the extent permitted by applicable law. Termination will not relieve Customer of its obligation to pay any fees payable to Company for the period prior to the effective date of termination.
8.8 Return of Customer Data. Upon request made within 30 days after the effective date of termination or expiration, Company will make Customer Data available to Customer for export or download in an industry-standard format. After such 30-day period, Company will have no obligation to maintain any Customer Data and will thereafter destroy all copies of Customer Data in its control, unless legally prohibited.
8.9 Surviving Provisions. All provisions relating to fees and invoicing, proprietary rights, confidentiality, disclaimers, indemnification, limitation of liability, term and termination, and miscellaneous sections such as governing law and jurisdiction, whether incorporated into this Agreement directly or by reference, will survive any termination or expiration of this Agreement.
9. Generally Applicable Provisions
“Counterparty”, for the purposes of the “Generally Applicable Provisions” section, means the party that is entering into this Agreement with Company.
9.2 Payment Related Provisions
9.2.1 Overdue Charges. If any invoiced amount is not received by Company by the due date, then those charges may accrue late interest at a rate that is the lower of the European Central Bank main refinancing rate plus 5 percentage points or the maximum rate permitted by law (it being understood that the European Central Bank main refinancing rate will never be deemed less than 0%). Such right will not limit Company’s other rights or remedies. Company will not exercise such right if Counterparty is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
9.2.2 Suspension for Non-Payment. If any invoices are more than thirty (30) days past due, Company reserves the right to suspend Company’s performance of services and Counterparty’s rights of access until such amounts are paid in full. Such right will not limit Company’s other rights or remedies. Company will give Counterparty at least thirty (30) days’ written notice before exercising such right. Company will not exercise such right if Counterparty is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
9.2.3 Taxes. “Taxes” means any taxes, duties or similar assessments by any jurisdiction, including value-added, sales, or withholding taxes. Company’s fees do not include any Taxes. Counterparty is responsible for paying all Taxes associated with its purchases under this Agreement. If Company is legally obliged to pay or collect Taxes for which Counterparty is responsible under this section, Company will invoice Counterparty and Counterparty will pay that amount. This will not apply if Counterparty provides Company with a valid tax exemption certificate. For clarity, it is Company that is responsible for taxes assessable against it based on Company’s income, property and employees.
9.2.4 Affiliate orders. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common Control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity; any such legal entity will be considered an Affiliate only as long as such interest is maintained. Affiliates of either party may enter into order documents governed by this Agreement. For purposes of such order documents, “Company” and “Counterparty” will mean the respective Company Affiliate and Counterparty Affiliate. Each such order document (i) constitutes a separate and independent agreement between the respective Affiliates; (ii) incorporates by reference the terms of this Agreement; (iii) may include localizing amendments to the terms of this Agreement that will only apply between the respective Affiliates.
9.2.5 Purchases Through Resellers. “Reseller” means an entity that has entered into an agreement with Company that, among other things, authorizes that entity to resell the services provided by Company hereunder. If Counterparty enters into an order with a Reseller, any terms herein related to ordering, invoicing, refunds or credits will not apply. Such commercial terms will need to be established between Counterparty and Reseller. For the avoidance of doubt, nothing in this section affects suspension or deactivation rights of Company under this Agreement.
9.3.1 Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is either designated as confidential or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Counterparty includes electronic data submitted by Counterparty to any SaaS service provided by Company hereunder; Confidential Information of Company includes any SaaS service provided by Company hereunder and the terms and conditions of this Agreement and all any order document (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information does not include any information that (in each case without breach of any obligation owed to the Disclosing Party): (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) is received from a third party; or (iv) was independently developed by the Receiving Party. As between the parties, each party retains all ownership rights in and to its Confidential Information. The non-disclosure obligations in this “Confidentiality” section also apply in connection with the Counterparty’s evaluation of additional Company services.
9.3.2 Protection of Confidential Information. The Receiving Party will protect the Confidential Information with the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). This means in particular that (i) the Receiving Party will not use any Confidential Information for any purpose outside the scope of this Agreement; (ii) except with the Disclosing Party’s prior written consent, the Receiving Party will limit access to Confidential Information on a “need-to-know” basis, i.e., those employees, contractors, subcontractors, subprocessors, and partners who need such access in connection with the performance of this Agreement, in which case the Receiving Party will ensure that they are bound by confidentiality obligations that are materially as protective as those specified in this Agreement. Specifically with regard to the terms of this Agreement and all order documents hereunder, neither party will disclose such terms to any third party without the other party’s prior written consent, except as follows: (i) to its Affiliates, legal counsel, accountants, banks, or financing sources (in each case including those of Affiliates); (ii) in connection with an actual or proposed merger, acquisition, or similar transaction; in each case provided that a party that makes any such disclosure will remain responsible for the recipient’s compliance with this “Confidentiality” section.
9.3.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9.3.4 Remedies. If the Receiving Party discloses or uses any Confidential Information in breach of this section “Confidentiality”, the Disclosing Party will have the right to seek injunctive relief, in addition to any other rights. The parties acknowledge that any other available remedies would be inadequate in such case.
9.4.1 Indemnification by Company. A “Claim Against Counterparty” is a claim, demand, suit or proceeding brought against Counterparty by a third party, alleging that such third party’s intellectual property rights have been infringed or misappropriated by the SaaS or other services purchased by Customer hereunder (“Services”).
In the event of a Claim Against Counterparty, Company will do the following: (i) Company will defend Counterparty against a Claim Against Counterparty; (ii) Company will indemnify Counterparty from any damages, attorney fees and costs finally awarded against Counterparty as a result of a Claim Against Counterparty; (iii) Company will indemnify Counterparty for amounts paid by Counterparty under a settlement of a Claim Against Counterparty approved by Company in writing.
Such obligations will be subject to the following conditions: (i) Counterparty promptly gives Company written notice of the Claim Against Counterparty; (ii) Counterparty gives Company sole control of the defense and settlement of the Claim Against Counterparty (except that Company may not settle any Claim Against Counterparty unless it unconditionally releases Counterparty of all liability); (iii) Counterparty gives Company all reasonable assistance, at Company’s expense.
Such obligations will not apply if a Claim Against Counterparty arises, in whole or in part, from: (i) the use or combination of the Services with non-Company data or technologies, if the Services or their use would not infringe without such combination; (ii) Counterparty’s continuation of the allegedly infringing activity after being notified of the alleged infringement or of modifications that would avoid the alleged infringement; (iii) Counterparty specifications or modifications; (iv) Counterparty’s breach of this Agreement, applicable order document, or any Company documentation relating to the Services; (v) the use of the Services under a free trial, if applicable (vi) the use of Services that are provided by Company for free.
If Company receives information about a Claim Against Counterparty, Company may in its discretion and at no cost to Counterparty do any of the following: (i) modify the Services so that they are no longer claimed to infringe or misappropriate; (ii) obtain a license for Counterparty’s continued use of the Services in accordance with this Agreement; or (iii) terminate Counterparty’s subscription for the Services (or the part that is claimed to infringe or misappropriate) upon 30 days’ written notice and refund Counterparty any prepaid but unused fees in that regard.
9.4.2 Indemnification by Counterparty. A “Claim Against Company” is a claim, demand, suit or proceeding brought against Company by a third party, alleging that such third party’s intellectual property rights have been infringed or misappropriated by the way Counterparty is using the Services, for example in combination with non-Company data or technologies.
In the event of a Claim Against Company, Counterparty will do the following: (i) Counterparty will defend Company against a Claim Against Company; (ii) Counterparty will indemnify Company from any damages, attorney fees and costs finally awarded against Company as a result of a Claim Against Company; (iii) Counterparty will indemnify Company for amounts paid by Company under a settlement of a Claim Against Company approved by Counterparty in writing.
The obligations above will be subject to the following conditions: (i) Company promptly gives Counterparty written notice of the Claim Against Company; (ii) Company gives Counterparty sole control of the defense and settlement of the Claim Against Company (except that Counterparty may not settle any Claim Against Company unless it unconditionally releases Company of all liability); (iii) Company gives Counterparty all reasonable assistance, at Counterparty’s expense.
9.4.3 Exclusive Remedy. This “Indemnification” section states the indemnifying party’s sole liability to the other party for any claim described in this section, and the indemnified party’s exclusive remedy against such claim.
9.5 Limitation of Liability
9.5.1 Unlimited Liability. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR: (i) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; (ii) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
9.5.2 Limited Liability. SUBJECT TO THE SECTION “UNLIMITED LIABILITY”, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY COUNTERPARTY HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT COUNTERPARTY’S PAYMENT OBLIGATIONS HEREUNDER.
9.5.3 Exclusion of Consequential and Related Damages. SUBJECT TO THE SECTION “UNLIMITED LIABILITY”, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, PURE ECONOMIC LOSS, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
9.6.1 Anti-Corruption. Neither party has been offered or received any illegal or improper bribe, kickback, payment, gift, or other thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
9.6.2 Insurance. Each party will maintain, at its own expense during the term of this Agreement, insurance appropriate to its obligations under this Agreement, including as applicable general commercial liability, errors and omissions, employer’s liability, automobile insurance, and worker’s compensation insurance as required by applicable law.
9.6.3 Entire Agreement. This Agreement, including all order documents, is the entire agreement between the parties concerning its subject matter, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that no terms or conditions stated in a Counterparty purchase order or similar document will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. Titles and section headings of this Agreement are for convenience only and will not affect the construction of any provision of this Agreement.
9.6.4 Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (i) the applicable order document, including any addenda or supplements; (ii) exhibits and addenda forming part of this Agreement (including separate agreements); (iii) the main body of this Agreement, (iv) any Company documentation relating to SaaS services provided by Company hereunder.
9.6.5 Modification. Except as otherwise stated in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
9.6.6 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.6.7 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
9.6.8 Waiver. Failure or delay by either party in exercising any right under this Agreement will not constitute a waiver of that right.
9.6.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
9.6.10 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld), except the Agreement in its entirety (including all order documents) to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other party, then the other party may terminate this Agreement upon written notice. In the event of such a termination, Company will refund Counterparty any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.6.11 Force Majeure. In the event that a party is prevented or restricted from performing or is delayed in performing any of its obligations under this Agreement due to any cause beyond the reasonable control of such party (including, without limitation, war, terrorism, fire, earthquake, flood, hurricane, civil unrest, acts of God, epidemics, pandemics, extraordinary governmental action, labor union strikes, internet service provider failures or delays, denial of service attacks, or other similar causes) (“Force Majeure Event”) the affected party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such Force Majeure Event. A Force Majeure Event does not relieve a party from its payment obligations under the Agreement. The affected party agrees to use commercially reasonable efforts to address and mitigate the impact of such Force Majeure Event and continue performance to the extent reasonably possible under the circumstances.
9.6.12 Notices. All notices related to this Agreement will be in writing and will be effective upon (i) the day of sending by email; (ii) the day of sending via online platform intended for the management of contracts and allowing for the parties to connect; (iii) the second business day after mailing; (iv) personal delivery. Notwithstanding, notices of termination or an indemnifiable claim (“Legal Notices”) will be in writing, clearly identifiable as Legal Notices, and effective only upon (i) personal delivery; (ii) the second business day after mailing; (iii) the day of sending via online platform intended for the management of contracts and allowing for the parties to connect. Billing-related notices to Counterparty will be addressed to the relevant billing contact designated by Counterparty, if any. All other notices to Counterparty (including billing-related if no billing contact has been designated) will be addressed to the relevant system administrator designated by Counterparty. Email notices to Company will be addressed to email@example.com.
9.6.13 Governing Law and Dispute Resolution. The governing law will be the laws of England and Wales. Any dispute, controversy or claim (whether contractual or non-contractual) arising under, out of or relating to this Agreement, its subject matter or formation will be submitted for final determination by arbitration conducted by the London Court of International Arbitration (“LCIA”) (or, if unavailable, then such other similar group that can provide former judges as arbiters) under and in accordance with the Arbitration Act 1996 and the rules of the LCIA at the date of such submission (which are incorporated by reference) by a single arbiter who is (i) fluent in written and spoken English; (ii) skilled and experienced with cloud or internet services; and (iii) substantive knowledge and qualifications for English law. The place of such arbitration will be in London, United Kingdom. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the Parties and may be entered in any court of competent jurisdiction. Nothing in this Section will limit or restrict either party from seeking injunctive or other equitable relief from a court of competent jurisdiction.