Current Enterprise Services Agreement
Prior Enterprise Services Agreements applicable to Sales Orders:
This ENTERPRISE SERVICES AGREEMENT (the “Agreement”) is made between Gravitational, Inc. (the “Provider”) and the enterprise customer set forth in the Sales Order making reference to this Agreement (“Customer” and together with Provider, each a “Party” and collectively, the “Parties”) effective as of the Effective Date set forth in the Sales Order making reference to this Agreement (the “Effective Date”).
This Agreement applies when it is specifically referenced in one or more sales orders signed by Customer and Provider (each, a “Sales Order”).
WHEREAS, Provider has developed a software system for managing privileged access to elastic compute infrastructure (found online at https://goteleport.com (“Teleport Access Plane”) which consists of technology hosted on the infrastructure controlled by Provider and accessed remotely, via the cloud (the “Cloud Software”), or downloadable software hosted on the computer infrastructure controlled by Customer (the “Self-Hosted Software” and, together with the Cloud Software, the “Software”),
WHEREAS, the Parties have agreed that Provider will provide the Software to Customer, as well as such professional services as the parties may agree, as set forth in and pursuant to the terms of this Agreement and one or more Sales Orders.
NOW THEREFORE, in consideration of the foregoing and the mutual obligations and undertakings contained herein, the Parties hereby agree as follows:
1. PROVISION OF SOFTWARE AND SERVICES.
1.1. Access to Software. Provider hereby grants to Customer, to the extent Customer purchases access via the Sales Orders, the limited, non-exclusive right to access and use the Cloud Software and/or the limited, non-exclusive license to reproduce and use the Self-hosted Software, as set forth in the applicable Sales Orders, during the Subscription Plan Term(s), for Customer's internal business purposes. For the avoidance of doubt, the rights to use or license, applicable, to the Cloud Software or Self-hosted Software are separate, and Customer has only the access rights or license for the product set forth on the Sales Orders.
1.2. Sales Orders. The terms of the Sales Orders are incorporated herein by reference and form a part of this Agreement. The Parties may agree to additional Sales Orders from time to time that shall be incorporated into this Agreement by reference hereto.
1.3. Subscription Plan Term. The “Subscription Plan Term” shall be as set forth on the Sales Orders. If no Subscription Plan Term is specified in the Sales Orders, the Subscription Plan Term shall be period of 12 months beginning on the Effective Date and shall be subject to renewal as set forth in the Sales Order(s).
1.4. Support. Provider will provide customer service and technical support to Customer as set forth in the Sales Orders.
1.5. Professional Services. Provider may configure, implement and provide training for the Software as specified in the Sales Orders for the benefit of Customer (the “Professional Services”). The Parties agree that the Professional Services will be completed within the time frame set forth in the Sales Orders. In the event of a termination of this Agreement, Customer shall remain liable for all fees attributable to the portion of the Professional Services completed through the effective date of termination.
2.1. Subscription Plan Fee. In consideration for the rights to use the Software set forth herein and in the Sales Orders (the “Subscription Plan”), Customer agrees to pay Provider the fees set forth in the Sales Orders (the “Subscription Fees”).
2.2. Professional Services Fee. In consideration for performing the Professional Services, Customer agrees to pay Provider the fees set forth in the Sales Order. If the Professional Services end partway through a week, the partial week of work will be pro-rated based on the actual number of hours worked and a total of 40 working hours in a week.
2.3. Billing. Provider will invoice Customer for the Professional Services and for the Subscription Fees as set forth in the applicable Sales Order. All invoices shall be payable as set forth in the applicable Sales Order.
2.4. Expenses. Customer shall reimburse Provider for all travel and other out-of-pocket expenses incurred by Provider related to training of, or providing support to, Customer or Customer's customers, subject in each case to Customer's preapproval of such expenses.
2.5. Taxes. Amounts due under this Agreement are payable to Provider without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, Provider may require that Customer submit applicable Sales Taxes to Provider. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives Provider a valid tax exemption certificate within 30 days of the Effective Date. Provider's failure to include any applicable tax in an invoice will not waive or dismiss the parties' rights or obligations pursuant to this section. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay Provider the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this section does not govern taxes based on Provider's net income.
3. INTELLECTUAL PROPERTY.
3.1. Ownership. Provider shall own and retain all right, title, and interest in and to the Software and the documentation describing the Software provided by Provider (the “Documentation”), including without limitation all modifications, improvements, upgrades, enhancements and customization thereto or derivative works thereof (but excluding any licensed content and software components included therein). Customer may reproduce and use the Documentation solely as necessary to support Users' use of the System. Except as expressly provided in this Agreement, Provider does not grant to Customer any license, express or implied, to the intellectual property of Provider or its licensors. Provider may revise the features and functions of the Software or the Documentation at any time, provided no such revision materially reduces features or functionality provided pursuant to an outstanding Sales Order.
3.2. Feedback. Customer may provide Provider with bug reports, comments, suggestions, enhancement requests, recommendations, or other feedback related to the Software, Documentation or the Professional Services, including, without limitation, about how to improve the foregoing (collectively, “Feedback”). Nothing in this Agreement or in the Parties' dealings arising out of or related to this Agreement will restrict Provider's right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the individual providing such Feedback, except to the limited extent that Section 10 (Confidentiality) governs Feedback that constitutes Customer's Confidential Information. Notwithstanding the provisions of Section 10 (Confidentiality), Customer may not designate Feedback as its Confidential Information to the extent that such Feedback relates to Provider's products or services.
4. CUSTOMER RESPONSIBILITIES AND RESTRICTIONS.
4.1. IP Restrictions. Customer shall not: (a) copy, alter, modify, reverse engineer, decompile, derive the source code or other trade secrets from, or create derivative works of the Software; (b) distribute, publicly display, publicly perform, or sublicense the Software except as expressly authorized herein; (c) otherwise use the Software in any way that violates the use restrictions contained in this Agreement; (d) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software, except Users as specifically authorized by this Agreement; (e) provide Software passwords or other log-in information to any third party, except Users as specifically authorized by this Agreement; (f) share non-public Software features or content with any third party; (g) access or use the Software in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Software, or to copy any ideas, features, functions or graphics of the Software; or (h) engage in web scraping or data scraping on or related to the Software, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. If it suspects any breach of the requirements of this Section 4.1, including without limitation by Users, Provider may suspend Customer's access to the Software without advanced notice, in addition to such other remedies as Provider may have. This Agreement does not require that Provider take any action against Customer or Users or other third party for violating this Agreement, but Provider is free to take any such action it sees fit. Customer shall take reasonable steps to prevent unauthorized access to the Software, including without limitation by protecting its passwords and other log-in information. Customer shall notify Provider immediately of any known or suspected unauthorized use of the Software or breach of its security and shall use best efforts to stop said breach.
4.2. Compliance with Laws. In its use of the Software, Customer shall comply with all applicable laws, including without limitation laws regarding privacy and security.
4.3. Authorized Users; System Access. Customer is responsible and liable for: (a) use of the Software by Customer's authorized Users, including without limitation unauthorized User conduct or machine behavior and any User conduct or machine behavior that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the Software through Customer's account, whether authorized or unauthorized. Customer represents and covenants that all Users are employees, contractors, subcontractors, applications or infrastructure components (as applicable) of Customer. For purposes hereof, “Users” shall mean the employees, contractors, subcontractors, applications or infrastructure components (as applicable) of Customer or Customer's Affiliates. For purposes hereof “Affiliate” means with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities.
5. REPRESENTATIONS AND WARRANTIES.
5.1. Mutual Representations. Each Party hereby represents and warrants to the other Party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such Party and (c) it shall comply with all applicable laws, rules and regulations, including applicable privacy and data protection laws.
5.2. Provider Representations. Provider further represents and warrants that, to its knowledge:
5.2.1. Conformance. The Software shall substantially conform in all material respects to the specifications set forth in the Documentation, when accessed, installed, operated and used in accordance with the Documentation and this Agreement.
5.2.2. IP Rights in the Software. Provider is the owner of the Software and each component thereof, or the recipient of a valid license thereto, and Provider has and will maintain the full power and authority to grant the rights to use the Software set forth in this Agreement without the further consent of any third party. Provider's representations and warranties in this Section 5.2.2 do not apply to the extent that the infringement arises out of any of the conditions listed in Section 7.1(a) through Section 7.1(f) below. In case of a breach of the warranty in this Section 5.2.2, Provider, at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the Software; (b) replace or modify the Software to make it non-infringing; or if such remedies are not commercially practical in Provider's reasonable opinion, (c) terminate the infringing features of the Software, and refund to Customer any prepaid fees for such features, in proportion to the portion of the Subscription Plan Term left after such termination. If Provider exercises its rights pursuant to the foregoing Section 5.2.2(c), Customer shall cease all use of affected components and erase any copies thereof. In conjunction with Customer's right to terminate for breach where applicable, the preceding sentence states Provider's sole obligation and liability, and Customer's sole remedy, for breach of the warranty in this Section 5.2.2.
6. DISCLAIMERS; NO WARRANTIES.
EXCEPT TO THE EXTENT SET FORTH IN SECTION 5.2.2 (IP RIGHTS IN THE SOFTWARE) ABOVE, CUSTOMER ACCEPTS THE SOFTWARE “AS IS” AND AS AVAILABLE. UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROVIDER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT (EXCEPT AS EXPRESSLY SET FORTH HEREIN), MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THE RESULTS OF USE OF THE SOFTWARE, AND CUSTOMER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
7.1. Provider Indemnification. Provider shall indemnify and defend Customer and Customer's Associates against any “Provider Indemnified Claim,” meaning any third party claim, suit or proceeding arising out of or alleging direct infringement of any patent, copyright, trade secret, or other intellectual property right as a result of Customer's authorized use of the Software. Provider's obligations set forth in this Section 7.1 do not apply to the extent that an Indemnified Claim arises out of: (a) Customer's breach of this Agreement, including without limitation its failure to cease use of the Software after Provider's direction pursuant to Section 5.2.2 (IP Rights in the Software); (b) revisions to the Software or components thereof made by a party other than Provider without Provider's written and express direction; (c) Customer's failure to incorporate Software updates or upgrades that would have avoided the alleged infringement, provided Provider offered such updates or upgrades without charges not otherwise required pursuant to this Agreement; (d) Provider's modification of the Software in compliance with specifications provided by Customer; (e) use of the Software, including any Professional Services, for a purpose or in a manner for which it was not designed or beyond its reasonably intended use as contemplated by the Parties; (f) use of the System in combination with hardware or software not provided by Provider. In case of an Indemnified Claim, Provider may exercise the remedies in subsections 5.2.2(a) through 5.2.2(c) above, including without limitation its right therein to terminate licenses and require return of the Software. THIS SECTION 7.1.1 SETS FORTH PROVIDER'S SOLE OBLIGATION IN THE EVENT OF A PROVIDER INDEMNIFED CLAIM.
7.2. Customer Indemnification. Customer shall indemnify and defend Provider and Provider's Associates against any “Customer Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Software, including without limitation: (a) claims by Customer's Users; (b) claims related to unauthorized disclosure or exposure of personal information or other private information, including without limitation information in Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Software through Customer's account, including without limitation by Customer Data; (d) claims that use of the Software through Customer's account, including by Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; and (e) infringement claims arising out of or related to the conditions listed in Section 7.1(a) through Section 7.1(f) above. Customer Indemnified Claims pursuant to the preceding sentence also include claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees. Customer Indemnified Claims listed above in this Section 7.2 include, without limitation, claims arising out of or related to Provider's negligence, but they exclude any claim that would constitute a Provider Indemnified Claim pursuant to Section 7.1 above.
7.3. Litigation & Additional Terms. The obligations of the indemnifying party (“Indemnitor”) pursuant to Section 7.1 or 7.2 above: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor's expense and payment of judgments; and (b) will be excused to the extent that the other contracting party's (“Indemnified Party's”) or any of such Indemnified Party's Associates' failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. If Indemnitor fails to assume the defense on time to avoid prejudicing the defense, Indemnified Party may defend the Indemnified Claim, without loss of rights pursuant to this Section 7. Indemnitor will control the defense of any Provider Indemnified Claim or Customer Indemnified Claim, as applicable, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. A party's “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.
8. LIMITATION OF LIABILITY AND DAMAGES.
8.1. EXCEPT FOR BREACH OF SECTION 4.1 (IP RESTRICTIONS) OR SECTION 10 (CONFIDENTIALITY) AND A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS, PROFITS OR OTHER LOSS, THAT RESULT FROM THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. EXCEPT FOR BREACH OF SECTION 4.1 (IP RESTRICTIONS) OR SECTION 10 (CONFIDENTIALITY) AND A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY'S OR ITS AFFILIATES' TOTAL LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE TOTAL FEES PAID AND DUE BY CUSTOMER TO PROVIDER HEREUNDER DURING THE YEAR PRECEDING THE INJURY IN QUESTION. THE LIMITS OF LIABILITY IN THE PRECEDING SENTENCE ARE CUMULATIVE AND NOT PER-INCIDENT.
9. CUSTOMER DATA.
9.1. Customer Data. “Customer Data” means all information processed or stored through the Software by Customer or on Customer's behalf. Customer Data does not include payment records, credit cards or other information Customer uses to pay Provider, or other information and records related to Customer's account, including without limitation identifying information related to Customer staff involved in payment or other management of such account.
9.2. Customer Data Access and Use. Provider shall not: (a) access, process, or otherwise use Customer Data other than as necessary to facilitate provision of the Software; or (b) give Customer Data access to any third party, except Provider's subcontractors that have a need for such access to facilitate the Software and are subject to a reasonable written agreement governing the use and security of Customer Data. Provider shall exercise commercially reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data.
9.4. Privacy and Information Security. In the event Provider will process personal data as part of Customer Data, the parties hereby agree and acknowledge that such personal data shall be processed in accordance with the Data Processing Agreement between the parties dated on or about the date hereof available at https://goteleport.com/legal/dpa (the “DPA”). The parties agree and acknowledge that the DPA shall be incorporated into this Agreement as if fully set forth herein and shall control over any conflicting terms contained herein with respect to the processing of Customer's personal data. Customer acknowledges Provider's technical and organizational security measures to protect Customer Data, available at https://goteleport.com/legal/security-addendum (“Security Addendum”).
9.5. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Software, Customer assumes such risks. Provider offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
9.6. Data Accuracy. Provider will have no responsibility or liability for the accuracy of data uploaded to the Software by Customer, including without limitation Customer Data and any other data uploaded by Customer or Users.
9.7. Data Deletion. Provider may permanently erase Customer Data if Customer's account is delinquent, suspended, or terminated for 30 days or more.
9.8. Customer Data Representations. Customer hereby represents and warrants that the Customer Data (a) will not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary or intellectual property right, or rights of publicity, personality or privacy; (b) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (c) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (d) will not be obscene or contain pornography or be harmful to minors; and (e) will not contain any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
9.9. Aggregate & De-Identified Data. Notwithstanding the provisions above of this Section 9, Provider may use, reproduce, or otherwise exploit De-Identified Data for the purpose of improving, maintaining and providing the Software, including without limitation, when aggregated with data from other customers. “De-Identified Data” refers to data and analytics regarding Customer's use of the Software with the following removed: information that identifies or could reasonably be used to identify an individual person, a household, or Customer.
9.10. Customer Logos and Designs. Customer shall retain all right, title and interest in and to all of Customer's logos, promotional graphics and related marketing designs (collectively, the “Customer Art”); provided, however, that Customer hereby grants to Provider a worldwide, royalty-free, non-exclusive license to use the Customer Art, as well as Customer's corporate and/or trade name, for (a) purposes of fulfilling its obligations hereunder and (b) to the extent Customer provides written consent in the Sales Orders or otherwise, marketing Provider's products and services to third parties.
10.1. Confidential Information. During the term of this Agreement, each Party (the “Receiving Party”) may receive or have access to business, technical, or financial information relating to the business of the other Party (the “Disclosing Party”), which is hereinafter referred to as the “Confidential Information” of the Disclosing Party.
10.1.1. Notwithstanding the foregoing, nothing will be considered “Confidential Information” of the Disclosing Party unless either: (a) it is or was disclosed in tangible form and is conspicuously marked “Confidential,” “Proprietary” or the like; (b) it is or was disclosed in non-tangible form and (i) identified as confidential at the time of disclosure; or (c) a reasonable person would consider the information to be confidential, given its nature and the circumstances surrounding disclosure.
10.1.2. “Confidential Information” shall not include information that the Receiving Party can document: (a) is or becomes (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant or employee of the Receiving Party) generally available to the public; or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
10.2. Obligations. The Receiving Party agrees: (a) to hold the Disclosing Party's Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information and not divulge such Confidential Information to any third party (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials); (b) not to make any use whatsoever at any time of such Confidential Information except to perform its obligations under this Agreement, and (c) not to export or re-export (within the meaning of U.S. or other export control laws or regulations) any such Confidential Information or product thereof. The foregoing obligations shall terminate with respect to any Confidential Information after three years following the disclosure thereof; provided, however, that for Confidential Information that is a trade secret under applicable law, such obligations shall survive until such Confidential Information is no longer such a trade secret.
10.3. Injunctive Relief. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses diligent, reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the Disclosing Party to participate in the proceeding. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party's Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to the Disclosing Party, and therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
**11. TERM; TERMINATION. **
11.1. Term. This Agreement shall commence on the Effective Date and, subject to either Party's right to early termination as provided herein, shall continue in force so long as Provider is providing the Professional Services and/or the right to use the Software is then in effect and has not been terminated.
11.2. Termination. This Agreement and any Sales Order may be terminated by either Party:
11.2.1. With written notice to the other Party of termination at least 30 days before renewal of the then-current Subscription Plan Term, with such termination effective at the end of the then-current Subscription Plan Term;
11.2.2. Immediately upon written notice to the other Party if the other Party commits a material breach or default in the performance of this Agreement and (if capable of cure) fails to remedy such breach or default within thirty (30) days after written notice thereof from the other Party; or
11.2.3. Immediately upon written notice to the other Party if the other Party files a petition of any type as to its bankruptcy, is declared bankrupt, become insolvent, makes an assignment for the benefit of creditors, goes into liquidation or receivership, or otherwise loses legal control of its business or is in such adverse financial condition as to endanger its ability to perform its obligations under this Agreement.
11.3. Effects of Termination. In the event of a termination of this Agreement:
11.3.1. Customer shall cease all use of the Software and delete, destroy, or return all copies of the Documentation and Software in its possession or control.
11.3.2. As soon as practicable following a request by Customer, Provider will delete or destroy any Customer Data or Customer Confidential Information in its possession, provided, however, that Customer hereby agrees that Provider may retain Customer Data or Customer Confidential Information if required by law or if such data exists within backups where it is put beyond practicable use and deleted in accordance with Provider's separate retention timeframes for archival media, and such data will remain subject to the requirements of this Agreement.
11.4. Refunds. In the event of a termination by Customer under Section 11.2.2, Provider shall provide Customer a refund in proportion to the portion of the Subscription Plan Term remaining after such termination for any fees paid in advance for Software or services not yet rendered. Provider will not be required to refund any fees paid pursuant to this Agreement except as specifically set forth herein.
11.5. Survival. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Sections 3 (Intellectual Property), 4 (Customer Responsibilities and Restrictions), 6 (Disclaimers; No Warranties), 7 (Indemnification), 8 (Limitation of Liability), 10 (Confidentiality), 11 (Term and Termination); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
**12. MISCELLANEOUS. **
12.1. Entire Agreement; Amendment. This Agreement sets forth the entire agreement between Provider and Customer. This Agreement (including any Sales Orders) shall not be amended, altered, or changed and no provision hereof shall be waived except by written agreement signed by both Parties or, in the case of a waiver, by the Party waiving compliance. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default and will not act to amend or negate the rights of the waiving Party.
12.2. Assignment. Neither Party shall assign any of its rights, obligations, or licenses hereunder without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement and its rights and obligations hereunder to a successor of such Party by way of merger, consolidation or acquisition of all or substantially all of the assets or business of such assigning Party so long as such successor remains bound by the terms of this Agreement.
12.3. Insurance. During the term of the Agreement, Provider will maintain, at a minimum, the following insurance coverage: (a) workers' compensation insurance as prescribed by the law of the state or nation in which the services are performed; (b) employment practices liability insurance with an aggregate limit of $1,000,000; (c) comprehensive automobile liability insurance if the use of motor vehicles is required, with an aggregate limit of $1,000,000; (d) commercial general liability insurance with a $2,000,000 limit for each occurrence and a $4,000,000 general aggregate limit; (e) excess or umbrella liability with a $1,000,000 each occurrence and aggregate limit; and (f) technology errors and omissions and cyber liability insurance (including, without limitation, coverage to address data loss, data security breaches, hacking and privacy law violations), in the amount of at least $1,000,000 for each occurrence and $5,000,000 in the aggregate.
12.4. Independent Contractors. Provider and Customer are independent contractors, and neither Provider nor Customer is an agent, representative, employer, employee, or partner of the other.
12.5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. The parties agree that any action brought by either Party under or in relation to this Agreement shall be brought exclusively in, and each Party agrees to and does hereby submit to the exclusive jurisdiction and venue of, any state or federal court located in San Mateo County, California.
12.6. Notices. Any notices under this Agreement shall be sent to the addresses set forth on the signature pages hereto (or in a separate writing) by electronic mail or nationally recognized express delivery service and deemed given upon receipt.
12.7. Severability. If any provision contained in this Agreement is determined to be unenforceable in any respect, then such provision will be severed, and the remaining provisions of this Agreement will remain in full force and effect.
12.8. Execution in Counterparts. This Agreement may be executed in one or more counterparts and by electronic means. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
12.9. Conflicts. In case of a conflict among the attachments to this Agreement and this main body, the following order of precedence will govern, with lower numbers governing over higher ones: (1) this main body of this Agreement; (2) any Sales Orders, with more recent Sales Orders taking precedence over earlier ones; and (3) any Provider policy posted online, to the extent applicable. No Sales Order or other attachment incorporated into this Agreement after execution of this main body will be construed to amend this main body or any earlier attachment unless it specifically states its intent to do so and cites the section or sections amended.
12.10. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control.
12.11. Technology Export. Customer shall not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export any software provided by Provider or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Software in, or export such software to, a country subject to a United States embargo.