SPOTLYFE Master Customer Agreement
This Master Customer Agreement (this “Agreement”) is made and entered into between Alinear Inc. DBA SPOTLYFE (“SPOTLYFE”) and Customer (defined below). This Agreement sets forth the terms pursuant to which Customer will be permitted to use and receive access to the Product (defined below), as identified in one or more Order Forms (defined below). Each of SPOTLYFE and Customer is a “Party” and together, the “Parties.”
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, USING (OR MAKING ANY PAYMENT FOR) THE PRODUCT (DEFINED BELOW), OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“Customer”) AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES (DEFINED BELOW) TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCT.
- Subscription Term. Unless earlier terminated in accordance with this Agreement or the applicable Order Form, Customer’s subscription to the Product under an Order Form be in effect for the initial term specified in such Order Form (“Initial Subscription Term”) and, if such Order Form provides for automatic renewal, then, unless either Party provides the other with notice of non-renewal, upon the date of expiration of the then-current term, such subscription will automatically renew for successive terms (each, a “Renewal Term”) equal in length to the Initial Subscription Term or such other length of Renewal Term period as stated on the Order Form (the Initial Subscription Term and each Renewal Term, if any, collectively, the “Subscription Term” of such Order Form). Notice of non-renewal of an Order Form must be provided by a Party at least 30 days prior to the end of the Initial Subscription Term or then-current Renewal Term, as applicable (or such other period as expressly specified on the applicable Order Form). Renewal of any Order Form may be conditioned on and subject to Customer’s agreement to changes to these Master Terms. Termination of this Agreement will terminate all Subscription Terms then in effect unless otherwise specified on the applicable Order Form. Customer’s access to the Product (or certain features thereof) may be automatically disabled upon expiration of the applicable Subscription Term.
- Order of Precedence. Any conflict between an Order Form or Sections 1–9 of this Agreement (the “Master Terms”) will be resolved in favor of the Order Form.
2. PRODUCT RIGHTS AND RESTRICTIONS
- Access and Use Grants. Customer may access and use the Product solely: (a) for the Subscription Term set forth in such Order Form and (b) in accordance with all applicable Documentation (defined below) and the restrictions set forth in this Agreement (including the applicable Order Form). Customer will be responsible for provisioning accounts to its authorized users. Different types of accounts may have access to different features and may be subject to different limitations of the Product. Customer will, at all times, be responsible for its users’ use of the Product and will ensure that each user complies with the terms of this Section 2 with respect to their use of the Product.
- Additional Features. Not all of the features or functionality of the Product may be available at Customer’s subscription level irrespective of whether such feature or functionality is described in the Documentation. Access to such features or functionality may require payment of additional fees or the purchase of additional access rights.
- Evaluation Products. If an Order Form indicates that Customer will receive the Product for evaluation or proof-of-concept purposes, then Customer may use the Product only for the purpose of evaluating the functions and performance of the Product, solely for the designated time period for the evaluation or trial, and subject to any additional usage restrictions specified on the applicable Order Form. Evaluation or proof-of-concept versions of the Product may be automatically disabled upon expiration of the designated trial period (at the end of which Customer’s right to use the Product under the applicable Order Form also expires), and that any data stored in the Product may become unavailable at that time.
- Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties (or other persons not authorized by this Agreement) to use the Product or the Documentation; (b) use the Product to provide services to third parties (e.g., as a service bureau); (c) use the Product for any benchmarking activity or in connection with the development of a competitive product or service; (d) circumvent or disable any security or other technological features or measures of the Product or use the Product in a manner that SPOTLYFE reasonably believes poses a threat to the security of SPOTLYFE-controlled computer systems; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from the Product (except to the extent that applicable law prevents the prohibition of such activities); or (f) use or access the Product in a manner that materially impacts or burdens SPOTLYFE or SPOTLYFE’s servers and other computer systems, or that interferes with SPOTLYFE’s ability to make available the Product to any third party.
- Documentation. To the extent that the Product is accompanied by any SPOTLYFE-provided user manuals, help files, specification sheets, or other documentation, in whatever form, relating to the Product (“Documentation”), SPOTLYFE hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under SPOTLYFE’s rights in the Documentation to use such Documentation solely to enable Customer to exercise its rights under the grant of access and usage rights for the Product as set forth in Section 2.1.
- Support. SPOTLYFE will provide support for the Product during SPOTLYFE’s business hours in accordance with its then-current standard policies regarding provision of support services.
- Third-Party Products. To the extent that the Product includes or is accompanied by third-party software or other products (e.g., cloud hosting instances or data analysis tools) that SPOTLYFE provides to Customer or that is otherwise identified in the Documentation as being required to use the Product (“Third-Party Products”), the Third-Party Products and their use by Customer are subject to all license and other terms that accompany such Third-Party Products. Customer will abide by and comply with all such terms. Without limiting the foregoing, if SPOTLYFE enables Customer to access a hosted environment offered by a third-party cloud or platform service provider, then Customer must agree to the applicable service provider’s terms and conditions prior to accessing such hosted environment and will comply at all times with such terms and conditions.
- Compliance with Laws. Customer will use the Product and Documentation in compliance with all applicable laws and regulations.
- Protection against Unauthorized Use. Customer will prevent any unauthorized use of the Product and Documentation and will immediately notify SPOTLYFE in writing of any unauthorized use of which Customer becomes aware. Customer will immediately terminate any unauthorized use by persons having access to the Product or Documentation through Customer.
- Ownership; Data. As between the Parties, Customer retains all right, title, and interest, including all intellectual property rights, in and to (a) any data or information that Customer uploads or inputs into the Product or otherwise makes available to SPOTLYFE, including in connection with Customer’s use of the Product; and (b) data that is generated and made available to Customer by the Product through use of the data described in part (a) above ((a) and (b) collectively, “Customer Data”). Customer hereby grants SPOTLYFE a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the Customer Data: (i) during the Term (defined below), for the purpose of exercising SPOTLYFE’s rights and performing its obligations under this Agreement and (ii) in perpetuity, in a form that does not identify Customer as the source, for its business purposes, including to develop and improve SPOTLYFE’s and its affiliates’ products and services. Customer represents and warrants that Customer has all rights necessary to grant SPOTLYFE the licenses set forth in this Section 2.10 and to enable SPOTLYFE to exercise its rights under the same without violation or infringement of the rights of any third party. As between the Parties, SPOTLYFE owns all right, title, and interest, including all intellectual property rights, in and to the Product, Documentation, and any improvements to any SPOTLYFE products or services made as a result of SPOTLYFE’s use, processing, or generation of Customer Data. During the Term, Customer may request that SPOTLYFE make available to Customer a copy of Customer Data stored in the Product, and SPOTLYFE may agree to do so for an additional fee.
- Feedback. If Customer provides any feedback to SPOTLYFE concerning the functionality and performance of the Product, or any Documentation (including identifying potential errors and improvements), Customer hereby assigns to SPOTLYFE all right, title, and interest in and to the feedback, and SPOTLYFE is free to use the feedback without payment or restriction.
3. FEES AND PAYMENT
- Fees and Payment Terms. Customer will pay SPOTLYFE the fees and any other amounts owing under this Agreement as specified in the applicable Order Form, including, where applicable, any specified early termination fees. Unless otherwise specified in such Order Form, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including reasonable attorneys’ fees) incurred by SPOTLYFE to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.
- Taxes. Other than net income taxes imposed on SPOTLYFE, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by SPOTLYFE after all such Taxes are paid are equal to the amounts to which SPOTLYFE would have been entitled in accordance with this Agreement if such additional Taxes did not exist.
4. TERM AND TERMINATION
- Term. This Agreement will remain in effect until terminated in accordance with this Section 4 (the “Term”).
- Termination for Convenience. Either Party may terminate this Agreement for convenience immediately upon notice to the other Party at any time that no Order Form is in effect.
- Termination for Material Breach. Either Party may terminate this Agreement or one or more Order Forms if the other Party does not cure its material breach of this Agreement or the applicable Order Form(s) within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 4.3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. Notwithstanding the foregoing, SPOTLYFE may immediately terminate this Agreement upon notice to Customer if SPOTLYFE reasonably believes that Customer has made or distributed any unauthorized copies of or granted unauthorized access to the Product, has violated Section 2.4, has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge SPOTLYFE’s or its licensors’ intellectual property rights, including rights in and to the Product. Without limiting any other provision of this Section 4.3, if Customer fails to timely pay any fees, SPOTLYFE may, without limitation to any of its other rights or remedies, suspend access to the Product under all Order Forms until it receives all amounts due.
- Post-Termination Obligations. If this Agreement is terminated for any reason: (a) Customer will pay to SPOTLYFE any fees or other amounts that have accrued prior to the effective date of the termination and (b) any and all liabilities accrued prior to the effective date of the termination will survive.
- Survival. Notwithstanding anything to the contrary herein, Sections 1, 2.10, 2.11, 3, 4.4, 4.5, 5, 6.3, 7 (with respect to Claims (defined below) arising during the Term), 8, and 9 will survive termination or expiration of this Agreement.
- Definition. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Discloser”) to or by the other Party (“Recipient”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. “Confidential Information” of a Discloser includes such Discloser’s business and marketing plans, technology and technical information, product plans and designs, and business processes. SPOTLYFE’s “Confidential Information” includes the Product, Documentation, all SPOTLYFE technical information, and all information concerning Product-related database structure information and schema. “Confidential Information” does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to Discloser, (b) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser, (c) is received from a third party without breach of any obligation owed to Discloser, or (d) was independently developed by Recipient without use of or reference to any of Discloser’s Confidential Information.
- Protection of Confidential Information. Except as otherwise permitted in writing by Discloser, Recipient will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of Discloser for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient containing protections no less stringent than those herein. Notwithstanding the foregoing, SPOTLYFE is permitted to disclose Confidential Information of Customer on a need to know basis to employees, contractors, and agents of its Affiliates. Recipient may disclose Confidential Information of Discloser if it is compelled by law to do so, provided Recipient gives Discloser prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. “Affiliate” means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations.
6. WARRANTIES AND DISCLAIMER
- Limited SPOTLYFE Warranties. SPOTLYFE hereby warrants, for the benefit of Customer only, that the Product will materially conform to the applicable Documentation (the “Product Warranty”) for a period of 30 days after the Product is first made available to Customer (the “Warranty Period”), provided that the Product Warranty will not apply to failures to conform to the applicable Documentation to the extent such failures arise, in whole or in part, from any modification of the Product by Customer or any third party or any combination of the Product with software, hardware, or other technology not provided by SPOTLYFE under the applicable Order Form. If any defect or error covered by the Product Warranty occurs, Customer will provide SPOTLYFE with sufficient detail to allow SPOTLYFE to reproduce the defect or error. If notified in writing by Customer during the Warranty Period, SPOTLYFE will, at its sole option, either (a) correct such error or defect in the Product, at no cost to Customer and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass or (b) all Customer to terminate the Order Form applicable to such Product, in which case, Customer’s right to use the Product will terminate and SPOTLYFE will refund to customer any subscription fees prepaid by Customer that are for the period after the date of termination (“Prepaid Fees”). The foregoing sentence sets forth Customer’s sole and exclusive remedy for SPOTLYFE’s breach of Product Warranty. SPOTLYFE is not responsible for any defect or error not reported during the Warranty Period or any defect or error caused by Customer.
- Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against such Party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such Party’s entry into or performance of this Agreement.
- Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6 OR AN ORDER FORM, SPOTLYFE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SPOTLYFE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, AND NON-INFRINGEMENT. SPOTLYFE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCT. SPOTLYFE DOES NOT WARRANT THAT THE PRODUCT OR DOCUMENTATION ARE ERROR-FREE OR THAT OPERATION OF THE PRODUCT WILL BE SECURE OR UNINTERRUPTED. SPOTLYFE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED BY THE PRODUCT OR DOCUMENTATION IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. SPOTLYFE EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF THE PRODUCT OR DOCUMENTATION.
- By SPOTLYFE. SPOTLYFE will: (a) at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of the Product as permitted pursuant to this Agreement infringes or misappropriates any patent, copyright, or trademark, subject to Section 7.4, and (b) indemnify Customer from and pay the applicable Losses (defined below). SPOTLYFE will have no obligation under this Section 7 for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): (i) use of the Product in combination with other products or services not provided by SPOTLYFE if such infringement or misappropriation would not have arisen but for such combination; (ii) the Product having been provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (iii) use of the Product by Customer for purposes not intended or outside the scope of the license granted to Customer; (iv) Customer’s failure to use the Product in accordance with instructions provided by SPOTLYFE, if the infringement or misappropriation would not have occurred but for such failure; or (v) any modification of the Product not made or authorized in writing by SPOTLYFE where such infringement or misappropriation would not have occurred absent such modification.
- Mitigation; Limited Remedy. If SPOTLYFE becomes aware of, or anticipates, a Claim subject to Section 7.1, SPOTLYFE may, at its option: (a) modify the Product so that it becomes non-infringing or substitute a functionally equivalent product; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the affected Order Form(s) on written notice and refund to Customer any Prepaid Fees. Sections 7.1 and 7.2 state SPOTLYFE’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement, misappropriation, or other violation of any third-party intellectual property right by the Product.
- Defense by Customer. Customer will: (a) at its expense, defend SPOTLYFE from any actual or threatened third-party Claim arising out of or based upon provision of the Customer Data or that is an Excluded Claim, subject to Section 7.4, and (b) indemnify SPOTLYFE from and pay the applicable Losses.
- Procedures. A Party’s obligations as the indemnifying Party (“Indemnitor”) with respect to a Claim for which the indemnified Party (“Indemnitee”) is indemnified under this Section 7 (an “Indemnified Claim”) are subject to Indemnitee doing the following: (a) providing Indemnitor prompt written notice of the Indemnified Claim; (b) granting Indemnitor full and complete control over the defense and settlement of the Indemnified Claim; (c) providing assistance in connection with the defense and settlement of the Indemnified Claim as Indemnitor may reasonably request; and (d) complying with any settlement or court order made in connection with the Indemnified Claim. Indemnitee will not defend or settle the Indemnified Claim without Indemnitor’s prior written consent. Indemnitee will have the right to participate in the defense of the Indemnified Claim at its own expense and with counsel of its own choosing, but Indemnitor will have sole control over the defense and settlement of the Indemnified Claim. “Losses” means: (i) all damages, costs, and attorneys’ fees finally awarded against Indemnitee pursuant to the Indemnified Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Indemnitee in connection with the defense of the Indemnified Claim (other than attorneys’ fees and costs incurred without Indemnitor’s consent after Indemnitee has accepted defense of the Indemnified Claim); and (iii) all amounts that Indemnitor agrees to pay to any third party to settle the Indemnified Claim.
8. LIMITATIONS OF LIABILITY
- Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SPOTLYFE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF SPOTLYFE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL SPOTLYFE BE LIABLE FOR ANY LOSS OF DATA STORED IN, OR IN CONNECTION WITH, THE PRODUCT.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL SPOTLYFE’S TOTAL LIABILITY OF ALL KINDS, IN AGGREGATE, ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SPOTLYFE UNDER THE ORDER FORM WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
- Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SPOTLYFE TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
- Relationship. SPOTLYFE will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
- Use of Brand Name. SPOTLYFE may use the name, brand, or logo of Customer (or Customer’s parent company) solely for the purpose of identifying Customer as a licensee or customer of SPOTLYFE in a “customer” (or similar) section of SPOTLYFE’s website, brochures, or other promotional materials, or as part of a list of SPOTLYFE’s customers in a press release or other public relations materials. Any such limited use by SPOTLYFE shall include proper attribution to Customer or its parent company of any trademark or logo of Customer or its parent company, and shall in no way suggest that SPOTLYFE is affiliated with, or speaking on behalf of, Customer or Customer’s parent company. Any other press releases or marketing materials referring to the trademarks or logos of Customer shall require mutual approval in writing prior to public dissemination thereof.
- Assignability. Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that SPOTLYFE may assign this Agreement to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates. A Change of Control shall be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
- Export. Customer will comply with all applicable export and import laws, rules, and regulations in connection with Customer’s activities under this Agreement. It is Customer’s responsibility to obtain any required licenses to export and re-export Product. The Product, including technical data, are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer represents and warrants that the Product is not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.
- Subcontractors. SPOTLYFE may utilize subcontractors or other third parties to perform its duties under this Agreement so long as SPOTLYFE remains responsible for all of its obligations under this Agreement.
- Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth on the applicable Order Form and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 9.6. Notices are deemed given 2 business days following the date of mailing or 1 business day following delivery to a courier.
- Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement (except for failure to make payments when due) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
- Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in York County, South Carolina in connection with any action arising out of or in connection with this Agreement.
- Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
- Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Product under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Product will immediately terminate.
- Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. References to “$” and “dollars” are to the currency of the United States of America. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
- Entire Agreement. This Agreement is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to the Parties’ agreement to this Agreement, nor does it affect the validity of any agreements between the Parties relating to other products or services of SPOTLYFE that are not described in an Order Form and with respect to which Customer has executed a separate agreement with SPOTLYFE that remains in effect. No employee, agent, or other representative of SPOTLYFE has any authority to bind SPOTLYFE with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. SPOTLYFE will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless SPOTLYFE specifically provides a written acceptance of such provision signed by an authorized agent of SPOTLYFE.