Master Subscription & Services Agreement
Brazen Technologies Inc.
Master Subscription and Services Agreement
This Master Subscription and Services Agreement (“Agreement”) is a binding contract between you ("Customer," "you," or "your") and Brazen Technologies Inc. ("Brazen," "we," or "us"), individually a “Party” and collectively the “Parties.” This Agreement governs your access to and use of the Services.
THIS AGREEMENT TAKES EFFECT WHEN YOU SIGN THE ORDER FORM(S) OR BY ACCESSING OR USING THE SERVICES (the "Effective Date"). BY SIGNING THE ORDER FORM(S) OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
(a) "Authorized User" means Customer and Customer's employees, consultants, contractors, users, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(b) "Services" means the services provided by Brazen under a Customer Order Form, specifically browser-based chat software that powers virtual career fairs, recruiting chatbots, text and video.
(c) "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 any other Authorized User through the Services.
(d) "Documentation" means Brazen's user manuals, handbooks, and guides relating to the Services provided by Brazen to Customer either electronically or in hard copy form.
(e) "Brazen IP" means the Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Brazen IP includes Aggregated Statistics and any information, data, or other content derived from Brazen's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
(f) "Third-Party Products" means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Services.
(g) “Order Form” means each Brazen ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the Services ordered by Customer from Brazen, sets forth the prices for the Services, and contains other applicable information, or terms and conditions.
(h) “Term” means the time period for the provision of the Services, as specified in an Order Form by subscription start and end dates.
2. Access and Use
(a) Provision of Access Subject to and conditioned on your payment of Fees, the applicable Order Form, and compliance with all terms and conditions of this Agreement, Brazen hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. Brazen shall provide you the necessary passwords and access credentials to allow you to access the Services. Customer acknowledges that Brazen has no delivery obligation and will not ship copies of any software as part of the Services. (i) Brazen will be entitled, at any time and for whatever reason, to modify the Services and/or some or all of the functionality or content of the Services with prior notice so long as such modification does not materially and adversely reduce the functionality of the Services. Brazen may elect in its sole discretion to condition the continuation of the rights granted hereunder on Customer’s accepting service improvements, corrections, adaptations, and conversions to more recent versions or any other changes to the Services.
(b) Documentation License Subject to the terms and conditions contained in this Agreement, Brazen hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Services.
(c) Use Restrictions You shall not, and shall not permit any Authorized Users to use the Services, any software component of the Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to (i) copy, modify, or create derivative works of the Services, any software component 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 except as expressly permitted under this Agreement; (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) remove any proprietary notices from the Services or Documentation; or (v) 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, regulation, or rule.
(d) Aggregated Statistics Notwithstanding anything to the contrary in this Agreement, Brazen may monitor Customer's use of the Services and collect and compile data and information related to Customer's use of the Services to be used by Brazen in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between Brazen and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Brazen. You acknowledge that Brazen may compile Aggregated Statistics based on Customer Data input into the Services. You agree that Brazen 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; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
(e) Reservation of Rights Brazen 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 Brazen IP.
(f) Suspension Notwithstanding anything to the contrary in this Agreement, Brazen may temporarily suspend Customer's and any other Authorized User's access to any portion or all of the Services if (i) Brazen reasonably determines that (A) there is a threat or attack on any of the Brazen IP; (B) Customer's or any other Authorized User's use of the Brazen IP disrupts or poses a security risk to the Brazen IP or to any other customer or vendor of Brazen; (C) Customer or any other Authorized User is using the Brazen 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) Brazen's provision of the Services to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Brazen has suspended or terminated Brazen'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 (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Brazen 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. Brazen shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured. Brazen will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
3. Customer Responsibilities
(b) Account Use You are responsible and liable for all uses of the Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are 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 you will be deemed a breach of this Agreement by you. You 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.
(c) Customer Data You hereby grant to Brazen 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 Brazen to provide the Services to you, 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. In no event will Brazen, directly, or indirectly share or disclose any personally identifiable information to or with any third party, or authorize any other person or entity to do the same. You will ensure that Customer Data and any Authorized User's use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You will retain all ownership and intellectual property rights in and to the Customer Data, and are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
(d) Passwords and Access Credentials You are responsible for keeping your passwords and access credentials associated with the Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
(e) Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
4. Service Levels and Support
(a) Service Levels Subject to the terms and conditions of this Agreement, Brazen shall use commercially reasonable efforts to make the Services available in accordance with the service levels available at http://www.Brazen.com/sla/ ("Service Levels").
(b) Support. The access rights granted hereunder entitle Customer to the support services described on Brazen's website located at https://www.Brazen.com/sla/
5. Fees and Payment
Customer shall pay Brazen the fees as described on all applicable Order Form(s) ("Fees") within thirty (30) days from the invoice date without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date. If Customer fails to make any payment when due, without limiting Brazen's other rights and remedies: (i) Brazen may charge interest on the past due amount per the Order Form(s), calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Brazen for all reasonable costs incurred by Brazen in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 14 days or more, Brazen may suspend, in accordance with Section 2(g), Customer's and all other Authorized Users' access to any portion or all of the Services until such amounts are paid in full. 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 Brazen's income.
6. Confidential Information
(a) From time to time during the Term, Brazen and Customer (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving 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, whether or not marked, designated, or otherwise identified as "confidential" at the time 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; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third Party; or (d) independently developed by the Receiving Party.
(b) The Receiving Party shall not disclose the Disclosing Party's Confidential Information to any person or entity, except to the Receiving Party's employees, agents, or subcontractors who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement.
(c) Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) 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. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the Receiving Party and will expire five years thereafter; 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.
(d) Each Party acknowledges and agrees that money damages may not be a sufficient remedy for any breach or threatened breach of this Section 7 by a Receiving Party. Therefore, in addition to all other remedies available at law (which neither Party waives by the exercise of any rights hereunder), the Disclosing Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and the parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
8. Intellectual Property Ownership; Feedback
As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Services and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third Party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
9. Limited Warranty and Warranty Disclaimer
(a) Brazen warrants that it provides Services using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE SERVICES ARE PROVIDED "AS IS" AND PROVIDER SPECIFICALLY 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, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(a) Brazen Indemnification (i) Brazen shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Customer resulting from any third-Party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third Party's US intellectual property rights, provided that Customer promptly notifies Brazen in writing of the Third-Party Claim, cooperates with Brazen, and allows Brazen sole authority to control the defense and settlement of such Third-Party Claim. (ii) If such a Third-Party Claim is made or Brazen reasonably anticipates such a Third-Party Claim will be made, Customer agrees to permit Brazen, at Brazen's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Brazen determines that neither alternative is reasonably available, Brazen 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 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third Party. (iii) This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.
(b) Customer Indemnification Customer shall indemnify, hold harmless, and, at Brazen's option, defend Brazen and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third Party's US intellectual property rights; or (ii) based on Customer's or any Authorized User's negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Brazen unless Brazen consents to such settlement, and further provided that Brazen will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
11. Limitations of Liability
IN NO EVENT WILL BRAZEN BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) 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. IN NO EVENT WILL BRAZEN'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, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000 WHICHEVER IS LESS.
12. Term and Termination
(a) Term. The term of this Agreement begins on the Effective Date and continues in full force and effect until terminated as below.
(c) Effect of Termination Upon termination of this Agreement, Customer shall immediately discontinue use of the Brazen IP. No expiration or termination of this Agreement 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.
(d) Survival This Section 12(d), Sections 5, 6, 10, 11, 13, 14, 15, 16, 17, 18 and any right, obligation, or required performance of the Parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
13. Personal Data
(a) Definitions. As used in this Section 10, the terms “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Process”, “Processor” and “Subcontractor” shall have the same meanings as in the EU General Data Protection Regulation 2016/679 (“GDPR”), and their cognate terms shall be construed accordingly.
(b) Brazen shall process Personal Data of Users solely on behalf of Customer for the purpose of providing the Services and as expressly authorized under these Terms and Conditions (inclusive of these Terms and Conditions and the applicable Services Description and Orders), and not for any other purpose or in any other manner, unless specifically instructed by Customer in writing to do so, or as required by applicable law. When Brazen Processes Personal Data for or on behalf of Customer, Brazen agrees: (i) Not to disclose or transfer Personal Data to any third Party without Customer’s prior express written consent, except where such disclosure or transfer is: (ii) To a subcontractor that, prior to such disclosure, has (1) agreed by written contract to be bound by obligations no less onerous than the obligations set out in these Terms and Conditions, and (2) undergone a thorough assessment for compliance with these obligations conducted by Brazen and agreed to be assessed periodically by Brazen; or (iii) To an affiliate, in which case Brazen will require the affiliate to provide at least the same level of protection for the Personal Data as is required by Brazen under this Section; or (iv) Required by applicable law. (v) To notify Customer without undue delay following Brazen’s receipt of requests from individuals exercising rights under the GDPR or other data protection laws applicable to Customer (such as rights to rectify, erase or block Personal Data) relating to Personal Data that Brazen Processes for or on behalf of Customer. By appropriate technical and organizational measures, insofar as this is possible, taking into account the nature of the Processing, Brazen agrees to assist Customer in fulfilling its obligations to respond to such communications and comply with applicable law. (vi) To take appropriate technical and organizational security measures to adequately protect Customer’s and its Personal Data of Users against misuse and loss in accordance with the Agreement and applicable law. (vii) To regularly train personnel responsible for processing Personal Data of Users about the obligations set forth in this Agreement, to provide an appropriate level of supervision and guidance to such personnel (including background checks where permitted by law), and to enforce disciplinary policies for personnel who fail to comply with those obligations;
(c) Customer represents and warrants to Brazen that it has obtained or established, or shall have obtained or established prior to any Processing of Personal Data under this Agreement, all rights or lawful basis reasonably required to Process, and to authorize Brazen to Process on Customer’s behalf, Personal Data of Users as contemplated by this Agreement.
(d) Brazen shall, without undue delay, inform Customer in the event of any actual or reasonably suspected Personal Data Breach that may involve Personal Data of Users.
(e) Brazen shall maintain and update at least annually a Personal Data Breach incident response plan that complies in all respects with applicable laws and industry best practices for companies Processing the types of Personal Data that Brazen will Process in connection with the applicable Order.
(f) Retention and Return of Personal Data. Upon termination or expiration of the applicable Order, Brazen shall, consistent with Customer's directions, return, delete or destroy all Personal Data that Brazen obtains in connection with the applicable Order, including all originals and copies of such Personal Data in any medium, and any materials derived from or incorporating such Personal Data, except that this requirement shall not apply to the extent Brazen is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which Personal Data Brazen shall securely protect from any further processing and eventually delete in accordance with Brazen's deletion policies, except to the extent required by applicable law.
This Agreement may be supplemented, amended, or modified only by the mutual agreement of the parties. No supplement, amendment, or modification of this Agreement shall be binding unless it is in writing and signed by all parties.
Brazen may subcontract its obligations hereunder, provided that (i) subcontractors are bound to terms materially similar to those set forth in these Terms and Conditions, and (ii) Brazen is responsible for subcontractors to the same extent as if it had performed the subcontracted functions.
16. 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. You shall not, directly or indirectly, export, re-export, or release the Services or the software or technology included in the Services to, or make the Services or the software or technology included in the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You 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 software or technology included in the Services available outside the US.
17. US Government Rights
Each of the software components that constitute the Services and the Documentation 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 you are an agency of the US Government or any contractor therefore, you receive only 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 customers and their contractors.
18. Governing Law and Jurisdiction
All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the Commonwealth of Virginia or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in the software industry and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.
19. Force Majeure
Neither Party shall be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control, including but not limited to: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, natural disasters, strikes, fire, explosion or generalized lack of availability of raw materials. For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in the market prices or conditions, or (c) a party's financial inability to perform its obligations hereunder.
Neither Party shall assign or transfer any rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, except that either Party shall have the right to assign the applicable Order and/or any of its rights or obligations hereunder without written consent to any affiliate, or in connection with a merger, consolidation, sale or acquisition of at least a majority of either Party’s assets or outstanding voting securities. Subject to these limitations, this Agreement shall inure to the benefit of and be binding upon the Parties and their successors and assigns.
If any part of these Terms and Conditions is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the Parties, and the remaining portions shall remain in full force and effect.