TERMS AND CONDITIONS
Last Updated: October 22, 2021
These SaaS Service Terms and Conditions (“Terms and Conditions”) are effective as of the date of execution of the first Order Form (“Effective Date”) by and between Conferences i/o (“Company”) and the customer identified on the Order Form (“Customer”), for the provisions of services in accordance with the following terms and conditions.
UPON EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE, OR BY OTHERWISE ACCEPTING THESE TERMS OF SERVICE, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree to these Terms and Conditions, Company is not willing to grant any right to use or access the Service to you. When used herein the term “Agreement” includes the body of these Terms and Conditions, all Order Forms, and all addendums, exhibits, and attachments hereto or referenced herein. In the event of a conflict between the body of these Terms and Conditions and an Order Form, addendum, exhibit, schedule, or other attachment, the body of these Terms and Conditions shall govern. For purposes of this Agreement, “Order Form” means one or more duly signed and executed Company SaaS service agreement ordering documents which reference these Terms and Conditions and all Order Forms are hereby incorporated herein.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL HEREAFTER REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU ARE HEREBY NOT PERMITTED AND MAY NOT USE THE PLATFORM (OR ANY OTHER TECHNOLOGY, SERVICES, CONTENT, OR PRODUCTS OFFERED BY COMPANY) IN ANY MANNER.
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Service in accordance with the Order Form.
1.2 Terms not otherwise defined in this Agreement shall have the following meaning:
“Service” means the Company’s audience engagement platform described in the Order Form, including any updates or improvements thereto and any professional services of Company in support thereof.
“User” means an individual who accesses the Service on Customer’s behalf or invitation, regardless of whether the User’s role within the Service is an Administrator, Moderator, or Attendee.
1.3 Service Access. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited subscription license for Customer and its Users to access and use the Service solely for Customer’s internal business purposes. Customer access to the administrator controls of the Service shall be password protected. This Agreement shall also apply to updates and upgrades, if any, the Company subsequently provides to Customer for the Service. Company shall host the Service and, subject to Section 9.1, may update the functionality, user interface, usability and other user documentation, training and educational information of, and relating to, the Service from time to time in its sole discretion as part of its ongoing mission to improve the Service and customers’ use of the Service. [Company shall endeavor to provide advance notice to Customer in writing or by e-mail of any material update.]
1.4 Support. Subject to the terms hereof, Company will provide Customer with reasonable technical support services during Company’s current standard operating hours (currently Monday through Friday from 9am to 6pm US - Eastern Time) in accordance with Company’s standard practice.
Technical Support. Company will assign Customer an Account Manager, and provide Customer with a 60 minute (virtual) kickoff training session and access to an array of self-serve training resources. For technical questions or issues, Customer may contact Company’s support team by emailing firstname.lastname@example.org, or by submitting a support ticket at help.conferences.io or through the support widget that is accessible within the Service. . Company’s support team is expected to reply to support tickets that were submitted during standard operating hours on the same day that it receives the ticket and within 24 hours for any new ticket submitted. The expected time for resolution or repair will vary based on the severity of the issue.
1.5 Maintenance. Company shall use reasonable efforts consistent with industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service and shall perform any implementation services in a professional and workmanlike manner. Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled Service disruption.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Restrictions. Customer’s use of the Service shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the Service. Except as expressly authorized by this Agreement, Customer shall not, and shall not permit any User or other third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form unless expressly authorized in writing by the Company; (b) use the Service for the purpose of building a similar or competitive product or service, (c) use the Service by any means other than through the interfaces that are provided by Company or otherwise obtain unauthorized access to the Service; (d) use the Service in a manner that is, to the best of its knowledge, contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (f) publish, post, upload or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (g) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Service; (h) use the Service, or allow the transfer, transmission, export, or re-export of the Service or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency; (i) do any "mirroring" or "framing" of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies; or (j) permit any third party to access or use the Platform other than a User.
2.2 Responsibility for Users. Customer is responsible for all activities conducted under its use of the Service and for Users' compliance with this Agreement. Customer shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement. Any action or breach by any of such User shall be deemed an action or breach by Customer.
2.3 Compliance. Customer represents, covenants, and warrants that it will use the Services only in compliance with Company’s standard policies, this Agreement, and all applicable laws and regulations, including without limitation those related to privacy, electronic communications and anti-spam legislation.
2.4 Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.5 Customer Information. Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address and phone number, and maintain and promptly update this information if it should change.
2.6 Passwords; Security. Customer will be responsible for the confidentiality and use of passwords associated with the Service. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Company of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any password related to the Service of which it becomes aware.
3. ELECTRONIC COMMUNICATIONS
3.1 Generally. Customer will also be responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account (collectively, “Electronic Communications”). Company will act as though any Electronic Communications it receives under Customer email addresses designated in writing by Customer as authorized administrative contacts will have been sent by Customer. Customer will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by Company.
3.2 Transmission. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary for use of the Service. Customer is responsible for securing DSL, cable or another high-speed Internet connection and up-to-date “browser” software in order to utilize the Service. Customer expressly consents to Company’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Company. Customer further acknowledges and understands that Company and its vendors and licensors do not operate or control the internet, and that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Company is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Company, including, but not limited to, the Internet, or Customer’s local network.
4. CONFIDENTIALITY; SECURITY
4.1 Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees not to use or disclose the Disclosing Party’s Proprietary Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed in writing by the Disclosing Party. The Receiving Party may disclose Proprietary Information on a need to know basis to its affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section 3. The Receiving Party agrees to use the same degree of care to protect the Disclosing Party’s Proprietary Information that it uses to protect its own Proprietary information of like kind, but no less than reasonable care.
4.2 Exclusions. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public through no action of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.
4.3 Disclosures Required by Law. Nothing in this Agreement will prohibit the disclosure of Proprietary Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation, provided that such party promptly notify the Disclosing Party of such law or order and provide the Disclosing Party an opportunity to contest, otherwise oppose, or seek to limit such disclosure. The Receiving Party will cooperate with and reasonable provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Proprietary Information so disclosed.
4.4 Return or Destruction of Proprietary Information. The Reciving Party shall, at the Disclosing Party’s option, return or destroy all Proprietary Information of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on the Receiving Party by law or regulation.
4.5 Security. Company will maintain and enforce safety and physical security procedures with respect to its access, use, and possession of Customer’s Proprietary Information and Customer Data that are (a) at least equal to industry standards for substantially similar services, and (b) which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure or access of such information. Without limiting the generality of the foregoing, Company will take all reasonable measures to secure and defend its location and equipment against “hackers” and others who may seek, without authorization, to modify or access Company systems or the information found therein. Company shall notify Customer of any confirmed unauthorized access to or use of any Customer Confidential Information or Customer Data by an unauthorized third party within seventy-two (72) hours following discovery or notification, if the information was, or is reasonably believed to have been acquired by an unauthorized person.]
5. PROPRIETARY RIGHTS
5.1 Ownership. Customer acknowledges that the Service (including any updates and improvements thereto) constitutes the exclusive intellectual property of the Company, embodies Company’s trade secrets, and is created and prepared by Company through the application of methods and standards used and developed through the expenditure of considerable work, time and effort. Company shall own and retain all right, title and interest in and to (a) the Service, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Service or support, and (c) all intellectual property rights related to any of the foregoing. Any rights in the Service or Company’s intellectual property not expressly granted herein by Company are reserved by Company.
5.2 Customer Data. As between Customer and Company, Customer shall own all right, title and interest in and to the data Customer loads into the Service (“Customer Data”). Customer grants Company a non-exclusive, limited, world-wide, royalty-free license to use Customer Data solely to perform this Agreement. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to Company for use under this Agreement. Customer shall comply with all applicable law related to Customer Data and shall comply with all legal duties applicable to Customer.
5.3 Usage Data. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, provided that such data does not include (directly or by inference) any information identifying Customer or any identifiable individual.. No rights or licenses are granted except as expressly set forth herein.
5.4 Feedback. The parties acknowledge and agree that Customer and/or its Users may, but is not obligated to, provide certain suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the Service (“Feedback”). Customer grants Company a royalty-free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service, Feedback (without attribution of any kind). Company acknowledges and agrees that the Feedback is provided by Customer as-is, without warranties of any kind, and any Feedback used by Company will be used at its sole risk and liability.
5.5 Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that a breach of this Section 5 may cause the other party irreparable injury and damage and therefore upon any such breach or any threat thereof, each party will be entitled to appropriate equitable remedies, and may seek injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss in addition to any other rights and remedies which may be available to such party at law or in equity.
6. PAYMENT OF FEES
6.1 Fees. Customer will pay Company the then-applicable fees described in the Order Form for the Service in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the use set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage at Company’s then-current rates and Customer agrees to pay the additional fees in the manner provided herein. Fees shall remain constant during the Initial Service Term (as defined on the Order Form); provided that Company reserves the right to change the Fees or applicable charges at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
6.2 Additional Users and Usage. The fees and the term of use for additional Users and other items procured during an existing subscription term will co-terminate with and be prorated through the end date of the subscription term for the applicable Service. Pricing for subsequent Order Forms shall be set at then-current Company pricing, unless otherwise agreed to by the parties. If the fees for a feature or functionality of the Service are based on usage of the Service, then Company may access and use Customer Data in the Service as reasonably necessary to determine the fees for the applicable feature or functionality.
6.3 Taxes. Company fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes ("Taxes"). Customer is responsible for paying all Taxes, excluding taxes based on Company's net income. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.4 Payment Terms. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the delivery date of the invoice. A 3% processing fee shall be added to any invoice which the Customer requests to pay via credit card. Invoice payments made by check or ACH transfer will not be subject to an additional processing fee. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support representative. If Company agrees that any amount Customer timely disputes has been billed in error, then Company shall credit to Customer, and any finance charge hereunder shall not apply to, such amount, and any finance charge or other fee actually paid by Customer in connection with a confirmed billing error will also be credited to Customer.
7. TERM AND TERMINATION
7.1 Term. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, thereafter, the subscription term of the applicable Service shall be extended as set forth in subsequent Order Forms (each successive renewal term, a “Renewal Term”).
7.2 Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured thirty (30) days after receipt of the notice by the breaching-party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure.
7.3 Effect of Termination. Upon termination or expiration of this Agreement, subject to Section 6.4 below, Customer shall have no rights to continue, and shall immediately stop, its use of the Service. If this Agreement is terminated as a result of Company’s breach of this Agreement, then Customer shall be entitled to a refund of the pro rata portion of any Fees prepaid by Customer to Company under this Agreement for the terminated portion of the Initial Service Term or then-applicable Renewal Term.
7.4 Return of Customer Data. Upon any termination or expiration of this Agreement, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to (except as required by Section 4.4), delete stored Customer Data.
7.5 Survival. All terms of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, indemnification obligations. warranty disclaimers, and limitations of liability.
8. THIRD PARTY APPLICATIONS
9. WARRANTY AND DISCLAIMER
9.1 Service Warranty. Company warrants that the material functions of the Service will not be materially decreased during the then-current subscription term. Customer’s sole and exclusive remedy for Company’s breach of this warranty shall be that Company shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the Order Form and if Company is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a pro-rata refund of the Fees paid under the Agreement for its use of the Service for the terminated portion of the Initial Subscription Term or then-current Renewal Term. Company shall have no obligation with respect to a warranty claim unless notified of such claim in writing within sixty (60) days of the first instance of any material functionality problem. The warranties set forth in this Section 9.2 are made to and for the benefit of Customer only. Such warranties shall only apply to the extent that the applicable Service has been utilized in accordance with this Agreement and applicable law.
9.2 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR TITLE/NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED. IN PARTICULAR, EXCEPT AS STATED IN THIS SECTION 9, THE SERVICE IS PROVIDED “AS IS”, AND COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE.
10.1 Indemnification by Company. Company shall hold Customer harmless from and against any and all claims, actions, proceedings, liabilities, losses, damages, costs, or expenses, including reasonable attorneys’ fees, experts’ fees, and court costs, arising out of any claim by a third party (“Claims”) alleging infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret. Customer shall: (i) give Company prompt written notice of any such Claim; and (ii) allow Company to control, and fully cooperate with Company (at Company’s sole expense) in, the defense and all related negotiations. Company shall not enter into any stipulated judgment or settlement that purports to bind Customer without Customer’s express written authorization, which shall not be unreasonably withheld or delayed. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If the Service becomes or is believed by Company to likely become subject to an infringement claim, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
10.2 Indemnification by Customer. Customer shall, at its own expense, defend , indemnify, and hold harmless Company its directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any Claims based on (a) Customer Data or or (b) Customer’s unauthorized use of the Service. Company shall: (i) give Customer prompt written notice of such Claim; and (ii) allow Customer to control, and fully cooperate with Customer (at Customer’s sole expense) in, the defense and all related negotiations. Customer shall not enter into any stipulated judgment or settlement that purports to bind Company without Company’s express written authorization, which shall not be unreasonably withheld or delayed.
11. LIMITATION OF LIABILITY
EXCEPT FOR THE PARTIES’ RESPECTIVE INDEMNITY OBLIGATIONS IN SECTION 10: (A) NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES OF EVERY KIND AND TYPE SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
12. DISPUTE RESOLUTION
Each party agrees that before it seeks mediation, arbitration, or any other form of legal relief it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of any contract between the parties and which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference, as mutually agreed by the parties) for the purpose of attempting in good faith to resolve the dispute. If after such meeting the dispute has not be resolved, the parties may then seek mediation, arbitration, or any other form of legal relief under this Agreement. The dispute resolution procedures in this Section 12 shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Proprietary Information.
13. GENERAL PROVISIONS
13.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
13.2 Assignment. This Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent. Notwithstanding the foregoing, Customer may assign this Agreement, without Company’s consent in the event of a merger, acquisition, or sale of all or substantially all of its assets. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
13.3 Entire Agreement; Modification; Waiver. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Any waiver, in whole or in part, of any provision of this Agreement will not be considered to be a waiver of any other provision.
13.4 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. Further, it is not the intention of this Agreement or of the parties to confer a third-party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the parties hereto a right of action under this Agreement or in any manner whatsoever.
13.5 Legal Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees, in addition to any other relief it may be awarded.
13.6 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All notices under this Agreement shall be sent to the address specified for each party in the signature block above. Either party may change its address or designee for notification purposes by giving notice to the other of the new address or designee and the date upon which such change will become effective.
13.7 Choice of Law. This Agreement shall be governed by the laws of the State of Illinois without regard to its conflict of laws provisions. The parties agree that any and all disputes, claims, or litigation arising from or related in any way to this Agreement shall be resolved exclusively by any federal or state court of competent jurisdiction located in: (a) if brought by Company, the County and State of Customer’s principal business location, and (b) if brought by Customer, in the County of Cook, State of Illinois, and each party waives any objections against and agrees to submit to the personal jurisdiction of the state and federal courts in such jurisdiction, including objections or defenses based upon an inconvenient forum.
13.8 Force Majeure. If either party cannot perform any of its obligations because of any act of God, court order, war, or any other cause not within the party’s reasonable control and could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing party will: (i) immediately notify the other party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event.
13.9 Construction. All headings used in this Agreement are for reference purposes only and are not part of this Agreement. All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection or other subpart. The words “include,” “includes,” “included,” “including,” “without limitation,” or the phrase “e.g.” shall not be construed as terms of limitation and shall, in all instances, be interpreted as meaning “including, but not limited to.”
13.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the parties as of the Effective Date.
13.11 Electronic Signatures Binding. This Agreement, including the Order Form, these Terms and Conditions, and related documents may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and Customer’s acceptance will be deemed binding between the parties.