Enterprise Online Services Agreement prior to June 1, 2022
This ENTERPRISE ONLINE 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 only applies if 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 compute infrastructure (found online at https://goteleport.com ( "Teleport Access Platform" ) which consists of technology hosted on the computer infrastructure controlled by Provider and accessed remotely, via the cloud (the "Cloud Software"), as well as software hosted on the computer infrastructure controlled by Customer (the "Self-Hosted Software").
WHEREAS, the Parties have agreed that Provider will provide certain products available with the Teleport Access Platform, including the Cloud Software, the Self-Hosted Software or a combination thereof (collectively, 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. 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. If Professional Services are being performed, notwithstanding anything to the contrary in this Agreement, before completion of the Professional Services, Customer may terminate this Agreement by providing 14 days' prior written notice to Provider. In the event of such a termination, Customer shall remain liable for all fees attributable to the portion of the Professional Services completed through the effective date of termination.
2. Provision of Software.
a. 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.
b. Subscription Plan. 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 automatic renewal for additional 12-month periods unless either party provides written notice of termination at least 30 days before renewal of the then-current Subscription Plan Term.
c. Access to Cloud Software. To the extent Customer purchases access to Provider's Cloud Software in the Sales Order, Provider hereby grants to Customer the limited, non-exclusive right to access and use, during the Subscription Plan Term(s), the Cloud Software as set forth in the applicable Sales Orders for Customer's internal business purposes.
d. Access to Self-Hosted Software. To the extent Customer purchases access to Provider's Self-Hosted Software in the Sales Order, Provider hereby grants to Customer the limited, non-exclusive license to reproduce and use, during the Subscription Plan Term(s), the Self-Hosted Software as set forth in the applicable Sales Orders for Customer's internal business purposes.
e. Secondary Access. If specifically allowed under the terms of the Sales Orders, Customer may authorize its customers ("End Clients" which shall hereinafter be included in the meaning of the term Users) to access and use the Software, in such numbers and according to such restrictions as are set forth in the applicable Sales Order, provided that: (i) Customer shall provide prompt written notice to Provider of the identity of any such End Client to whom Customer provides the right to access and use the Software, along with the material terms of such grant of access and, during the Subscription Plan Term(s), a monthly report of how many Nodes, Clusters, Endpoints (or other usage, as specified in the Sales Order) are deployed or connected, as applicable; (ii) Customer may not sell access to the Software, and neither Customer nor End Clients will receive title to or ownership of the Software or any component thereof; (iii) Customer will not sublicense or provide access to the Software to any third party that does not first agree to terms and conditions for use of the Software that are no less restrictive than those set forth in this Agreement; and (iv) no End Client shall have the right to sublicense, or otherwise provide access to, the Software to any third party. Customer is jointly and severally liable to Provider for the acts and omissions related to the Software of the End Clients. Provider will have no obligation to provide support or services or other remedies to End Clients. Internal business purposes do not include use by any parent, subsidiary, or affiliate of Customer, or any other third party other than End Clients as specifically authorized in this Agreement, and Customer shall not permit any such use.
3. Fees.
a. 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.
b. Subscription Plan Fee. In consideration for the license to use the Software, Customer agrees to pay Provider the fees set forth in the Sales Orders.
c. 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.
d. Billing. Provider will invoice Customer as set forth in the Sales Orders. All invoices shall be payable within thirty (30) days of the delivery of the invoice to Customer, unless stated otherwise in the Sales Orders.
e. 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.
4. Support.
Provider will provide customer service and technical support to Customer as set forth in the Sales Orders.
5. Representations and Warranties.
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; (c) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations; and (d) it shall comply with all applicable laws, rules and regulations, including applicable privacy and data protection laws. Provider further warrants that, to its knowledge, the Software does not violate or infringe upon the intellectual property rights of third parties including, without limitation, any proprietary information rights, or any copyrights, patents, trademark, trade secrets, or other proprietary rights.
6. Indemnification.
a. Provider Indemnification. Provider will indemnify, defend and hold Customer harmless from and against any third party claims, suits or proceedings and pay those amounts finally awarded by a court of competent jurisdiction against Customer (including damages, costs and expenses, including reasonable attorneys' fees) or payable by Customer pursuant to a settlement agreed to by Provider with respect to such claims, to the extent such claims arise from infringement by the Software (in the form provided by Provider) of any third party's intellectual property rights ("Infringement Claim"); provided that, Customer provides Provider with prompt written notice of all claims and threats thereof, sole control of all defense and settlement activities, and all reasonably requested assistance with respect thereto. Provider will not be responsible for any settlement it does not approve in writing. In the event the Software (or any part thereof) is held to, or Provider may be alleged to, infringe, Provider will have the option, at its discretion, to (i) modify the allegedly infringing Software to be non-infringing without diminishing the performance or functionality of the Software, (ii) obtain for Customer a license to continue using the Software, or (iii) if neither (i) nor (ii) are reasonably practicable, terminate this Agreement on thirty (30) days' notice and refund to Customer the unused portion of the fees paid in advance under this Agreement for such infringing technology. Notwithstanding any other terms or conditions of this Agreement, Provider shall have no liability or obligations under this Section 6 if the Infringement Claim relates to: (a) Customer's breach of this Agreement, (b) the combination of the Software with third party software, equipment or products, (c) 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, (d) use of any older version of the Software when use of a newer version provided by Provider would have avoided the infringement, (e) any modification or alteration of the Software, by a party other than Provider or without Provider's written and express direction, (f) Provider's compliance with any materials, designs, specifications or instructions provided to Provider by Customer, or (g) Customer's or Users' use of the Software, after Provider notifies Customer to discontinue use due to any Infringement Claim. THIS SECTION 6 SETS FORTH PROVIDER'S SOLE OBLIGATION AND CUSTOMER'S SOLE REMEDY IN THE EVENT OF VIOLATION OF THIRD-PARTY RIGHTS.
b. Customer Indemnification. Customer will indemnify, defend and hold Provider harmless from and against any third party claims, suits or proceedings and pay those amounts finally awarded by a court of competent jurisdiction against Provider (including damages, costs and expenses, including reasonable attorneys' fees) or payable by Provider pursuant to a settlement agreed to by Customer with respect to such claims, to the extent such claims arise out of or are related to Customer's alleged or actual use of, misuse of, or failure to use the Software, including without limitation: (i) claims by Users or by Customer's employees; (ii) claims related to unauthorized disclosure or exposure of personal information or other private information, including without limitation information in Customer Data; (iii) 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; (iv) 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 (v) infringement claims arising out of or related to Customer's breach of this Agreement, or the conditions listed in Subsections 6(a)(a) through 6(a)(g) above. Indemnifiable 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. Indemnifiable claims listed above in this Section 6(b) include, without limitation, claims arising out of or related to Provider's negligence, but they exclude any claim that would constitute an indemnifiable claims pursuant to 6(a) above.
c. Litigation & Additional Terms. The obligations of the indemnifying party ("Indemnitor") pursuant to Section 6(a) or 6(b) 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. Indemnitor will control the defense of any indemnifiable claim, 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.)
7. Disclaimers; No Warranties.
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, 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. CUSTOMER SHOULD NOTE THAT IN USING THE SOFTWARE, SENSITIVE INFORMATION MAY TRAVEL THROUGH INFRASTRUCTURES CONTROLLED BY CUSTOMER OR THIRD-PARTIES ON BEHALF OF CUSTOMER, WHICH ARE NOT UNDER PROVIDER'S CONTROL (SUCH AS THIRD-PARTY SERVERS). PROVIDER MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD-PARTY INFRASTRUCTURES.
8. Limitation of Liability and Damages.
a. EXCEPT FOR BREACH OF SECTION 9(A) (INTELLECTUAL PROPERTY) OR SECTION 12 (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.
b. EXCEPT FOR BREACH OF SECTION 9(A) (INTELLECTUAL PROPERTY) OR SECTION 12 (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. Intellectual Property.
a. Software. Provider shall own and retain all right, title, and interest in and to the Software, 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 agrees not to (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, or (c) otherwise use the Software in any way that violates the use restrictions contained in this Agreement. 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.
b. Feedback. Customer may provide Provider with bug reports, comments, suggestions, enhancement requests, recommendations, or other feedback related to the Software or the Professional Services, including, without limitation, about how to improve the Software (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 (Confidential Information) governs Feedback that constitutes Customer's Confidential Information. Notwithstanding the provisions of Section 10 (Confidential Information), Customer may not designate Feedback as its Confidential Information to the extent that such Feedback relates to Provider's products or services.
10. Customer Data.
a. 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.
b. 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.
c. Compliance and Privacy Policy. Provider shall comply with all privacy and security laws that are applicable both specifically to Provider and generally to data processors in the jurisdictions in which Provider does business and operates physical facilities. If Provider receives a "right to know," deletion, "right to be forgotten," or similar request related to Customer Data, Provider may respond in accordance with applicable law. Nothing in this Agreement precludes Provider from asserting rights or defenses it may have under applicable law related to such requests. Customer acknowledges Provider's privacy policy at https://goteleport.com/legal/privacy, and Customer recognizes and agrees that such privacy policy is not part of this Agreement and that nothing herein restricts Provider's right to alter such privacy policy, in its sole discretion.
d. 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.
e. 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.
f. Data Deletion. Provider may permanently erase Customer Data if Customer's account is delinquent, suspended, or terminated for 30 days or more.
g. Customer Data Representations. Customer hereby represents and warrants that the Customer Data (i) 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; (ii) 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); (iii) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (iv) will not be obscene or contain pornography or be harmful to minors; and (v) 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.
h. Aggregate & De-Identified Data. Notwithstanding the provisions above of this Section 10, Provider may use, reproduce, or otherwise exploit De-Identified Data for the purpose of improving, maintaining and providing the Software, including without limitation aggregated with data from other customers. ("De-Identified Data" refers to data 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.)
i. 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 if Customer provides Provider prior written consent in the Sales Order or otherwise, Customer hereby grants to Provider a worldwide, royalty-free, non-exclusive, revocable license to use the Customer Art, as well as Customer's corporate and/or trade name, for purposes of fulfilling its obligations hereunder and marketing Provider's products and services to third parties (such as on Provider's website, in a blog post, or case study), in each case solely with the express prior written consent of Customer.
11. Customer Responsibilities and Restrictions.
a. Acceptable Use. Customer shall not: (a) 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; (b) provide Software passwords or other log-in information to any third party, except Users as specifically authorized by this Agreement; (c) share non-public Software features or content with any third party; (d) access 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 (e) 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 11(a), 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.
b. Unauthorized Access. 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.
c. Compliance with Laws. In its use of the Software, Customer shall comply with all applicable laws, including without limitation laws regarding privacy and security.
d. Authorized Users; System Access. Customer is responsible and liable for: (a) use of the Software by Customer's authorized users ("Users"), including without limitation unauthorized User conduct and any User conduct 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.
12. Confidentiality.
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. Notwithstanding the foregoing, nothing will be considered "Confidential Information" of the Disclosing Party unless either: (1) it is or was disclosed in tangible form and is conspicuously marked "Confidential," "Proprietary" or the like; or (2) it is or was disclosed in non-tangible form and (i) identified as confidential at the time of disclosure or (ii) a reasonable person would consider the information to be confidential, given its nature and the circumstances surrounding disclosure. The Receiving Party agrees (i) to hold the Disclosing Party's Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information to any third person, (iii) not to make any use whatsoever at any time of such Confidential Information except to perform its obligations under this Agreement, and (iv) 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 shall not apply with respect to any Confidential Information after three years following the disclosure thereof; provided, however, that forConfidential Information that is a trade secret under applicable law, such obligations shall survive until such Confidential Information is no longer such a trade secret. or any Confidential Information that the Receiving Party can document (i) 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 (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. 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.
13. Term; Termination.
a. 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 license to the Software is then in effect and has not been terminated.
b. Termination. This Agreement may be terminated by either Party (a) with written notice to the other Party of termination at least 30 days before renewal of the then-current Subscription Plan Term, (b) immediately upon written notice to the other Party if the other Party commits a 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 (c) 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. In the event of any termination, (a) Customer will remain liable for any undisputed amounts due under this Agreement (adjusted on a pro rata basis, if applicable) and (b) Provider will return all Customer-Provided Data and Customer Art in its possession to Customer.
14. Miscellaneous.
a. Amendment; Waiver. 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.
b. 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.
c. Independent Contractors. Provider and Customer are independent contractors, and neither Provider nor Customer is an agent, representative, employer, employee, or partner of the other.
d. Entire Agreement. This Agreement sets forth the entire agreement between Provider and Customer.
e. 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 Francisco County, San Francisco.
f. 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.
g. 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.
h. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
i. 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. For the avoidance of doubt, the Sales Orders and this Agreement take precedence over Provider's online terms of service. 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.
j. 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.