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Terms of Service for Master Software as a Service Agreement

The following Terms of Service for Master Software as a Service Agreement (“Terms of Service”) are incorporated by reference into the Master Software as a Service Agreement between Customer and Service Provider (the “Agreement”). The defined terms used herein shall have the same meanings as set forth in the Agreement.

 

  1. Representations and Warranties.
    1. Mutual Representations and Warranties. Customer and Service Provider each represent and warrant that:
      1. it is a business duly formed, validly existing, and in good standing under the Laws of the states in which it does business;
      2. it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under the Agreement;
      3. the execution, delivery, and performance of the Agreement has been duly authorized by it and the Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar Laws affecting creditors' rights generally and by general equitable principles;
      4. it shall comply with all Laws applicable to the performance by it of its obligations under the Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under the Agreement; and,
      5. there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under the Agreement.
    2. By Service Provider. Service Provider represents and warrants that:
      1. Service Provider is possessed of superior knowledge with respect to the Services;
      2. Service Provider knows the particular purpose for which the Services are required;
      3. the Services to be performed under the Agreement shall be performed in a competent and professional manner and in accordance with the highest professional standards;
      4. Service Provider has the experience and is qualified to perform the tasks involved with providing the Services in an efficient and timely manner. Service Provider acknowledges that Customer is relying on Service Provider's representation of its experience and expertise, and that any substantial misrepresentation may result in damage to Customer;
      5. the Services and any other work performed by Service Provider hereunder shall be its own work, and shall not infringe upon any United States or foreign copyright, patent, trade secret, or other proprietary right, or misappropriate any trade secret, of any third party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under the Agreement;
      6. The Services, including the Platform and all software used in connection with the Services, and all updates, shall: (a) be free from material defects, (b) conform to the requirements and specifications set forth in the Agreement, including Exhibit A, and (c) shall contain no harmful surreptitious code, including code designed to modify, delete, damage, deactivate, disable, harm or otherwise impede in any manner the operation of the Services or any other associated software, firmware, hardware, computer system or network (e.g., a Trojan horse, worm, backdoor, etc.) (“Viruses”). Service Provider shall promptly correct or re-perform any defective or nonconforming Services.
  2. Non-Disclosure of Confidential Information. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties.
    1. Meaning of Confidential Information. For the purposes of the Agreement, “Confidential Information” of a party (“Disclosing Entity”) shall mean all information and documentation of such party that: (a) has been marked "confidential" or with words of similar meaning, at the time of disclosure by such Disclosing Entity; (b) if disclosed orally or not marked "confidential" or with words of similar meaning, was subsequently summarized in writing by the Disclosing Entity and marked “confidential” or with words of similar meaning; (c) with respect to information and documentation of Customer, whether marked “confidential” or not, includes or consists of Customer Data (as defined below), or any other Customer information and documentation included within any of the following categories: (i) policyholder, payroll account, agent, customer, supplier, or contractor information or lists; (ii) information regarding business plans (strategic and tactical) and operations (including performance); (iii) information regarding administrative, financial or marketing activities; (iv) pricing information; (v) personnel information; (vi) products and/or and services offerings (including specifications and designs); or, (vii) processes (e.g., technical, logistical, and engineering); or, (d) any Confidential Information derived from information of such Disclosing Entity. The term "Confidential Information" does not include any information or documentation that was: (a) already in the possession of the receiving entity (“Receiving Entity”) without an obligation of confidentiality; (b) developed independently by the Receiving Entity, as demonstrated by the Receiving Entity, without violating the Disclosing Entity’s proprietary rights; (c) obtained from a source other than the Disclosing Entity without an obligation of confidentiality; or, (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the Receiving Entity).
    2. Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents or subcontractors of the Receiving Entity who have a need to know in connection with the Agreement. A Receiving Party shall not use the other party’s Confidential Information for any purposes whatsoever other than the performance of the Agreement. The Parties agree to advise and require their respective employees, agents and subcontractors of their obligations to keep such information confidential.
    3. Cooperation to Prevent Disclosure of Confidential Information. Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of the Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
    4. Remedies for Breach of Obligation of Confidentiality. The parties acknowledge that breach of the obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, the non-breaching party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available to include, at the sole election of the non-breaching party, the immediate termination, without penalty to the non-breaching party, of the Agreement in whole or in part.
    5. The provisions of this Section shall survive the termination of the Agreement.
  3. Proprietary Rights.
    1. Pre-existing Materials. Customer acknowledges that, in the course of performing the Services, Service Provider may use software and related processes, instructions, methods, and techniques that have been previously developed by Service Provider (collectively, the “Pre-existing Materials”) and that same shall remain the sole and exclusive property of Service Provider.
    2. Data of Customer. Any and all data or information of Customer that: (i) is input by any Authorized User into the Platform; (ii) results from an Authorized User’s use of the Platform; (iii) is input into the Platform by or received into the Platform from any third party for Authorized User’s use; and/or (iv) is derived from any of the foregoing, including, without limitation, all lists, content or other records containing any such information, even if such information is aggregated or anonymized (“Customer Data”) shall be and remain the sole and exclusive property of Customer. Customer shall be entitled to receive an export of Customer Data, at the agreed upon hourly rate found in the Agreement, upon the request of Customer and upon expiration or termination of the Agreement. Service Provider is provided a license to Customer Data hereunder for the sole and exclusive purpose of providing the Services, including a license to store, record, transmit, maintain and display Customer Data only to the extent necessary in providing the Services, and in accordance with the requirements set forth herein.
    3. No License. Except as expressly set forth herein, either party grants no license to the other with respect to the Confidential Information, Pre-existing Materials or Customer Data. Nothing in the Agreement shall be construed to grant to either party any ownership or other interest in the Confidential Information, Pre-existing Materials or Customer Data, except as may be provided under a license specifically applicable to such Confidential Information, Pre-existing Materials or Customer Data.
    4. The provisions of this Section shall survive the termination of the Agreement.
  4. Information Security. Service Provider acknowledges that Customer has implemented an information security program (the “Customer Information Security Program”), as the same may be amended, to protect Customer’s Confidential Information, and Customer’s other information assets (collectively, the “Protected Data”), as such information assets may be further defined and classified in the Customer Information Security Program.
    1. Where Service Provider has access to the Protected Data, Service Provider acknowledges and agrees to the following:
      1. Service Provider shall segregate all Protected Data from that of any other client.
      2. Service Provider shall encrypt all Protected Data and all attributes of Protected Data processed, transmitted or stored by or in the Services, using then currently commercially reasonable algorithms and key lengths.
      3. Without limiting Service Provider’s obligation of confidentiality as further described herein, Service Provider shall be responsible for establishing and maintaining an information security program which shall have appropriate administrative, physical and technical safeguards that is designed to: (i) ensure the security and confidentiality of the Protected Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the Protected Data; (iii) protect against unauthorized access to or use of the Protected Data; (iv) ensure the proper disposal of Protected Data; and (v) ensure that all subcontractors of Service Provider, if any, comply with all of the foregoing. Such information security program established and maintained by Services Provider shall be no less rigorous than those maintained by Service Provider for its own data and information of a similar nature, and no less rigorous than the Customer Information Security Program.
    2. Customer reserves the right to review Service Provider’s policies and procedures used to maintain the security and confidentiality of the Protected Data.
    3. In the event of a breach or attempted breach of any of the security requirements described in this Section 4, Service Provider shall follow the procedures set forth below:
      1. Service Provider shall notify Customer promptly upon its becoming aware of: (i) any unauthorized possession, use or knowledge of Protected Data by any person, (ii) any attempt by any person to gain possession of Protected Data without authorization, or (iii) any attempt to use or acquire knowledge of any Protected Data without authorization (each, a “Security Breach”).
      2. In the event of a Security Breach or reasonably likely Security Breach, Service Provider shall notify the appropriate Customer personnel by telephone and e-mail within twenty four (24) hours and by a confirmatory written notice as soon as practicable (but in any event within two (2) days) following discovery or notification of such actual breach. In the event of a possible Security Breach, Service Provider shall provide written notice as soon as practicable after confirming or qualifying the possible breach (but in any event within two (2) days of confirming or qualifying the possible breach).
      3. If such actual or likely Security Breach was due to Service Provider’s acts or omissions, Service Provider shall:
        1. Investigate and promptly remediate the effects of the actual or likely Security Breach;
        2. Promptly provide Customer with reasonable assurances that safeguards consistent with Service Provider’s obligations under the Agreement have been implemented;
        3. Promptly furnish to Customer full details that Service Provider has or may obtain regarding such Security Breach and use reasonable efforts to assist Customer in investigating or preventing its reoccurrence;
        4. Cooperate with Customer in any litigation and investigation against third parties deemed reasonably necessary by Customer to protect its proprietary rights; and
        5. Promptly take commercially reasonable actions to prevent its reoccurrence.
      4. Service Provider shall reimburse Customer for all notification related costs incurred by Customer arising out of or in connection with any such Security Breach due to Service Provider’s acts or omissions and resulting in any required (either by law or under Customer’s policies and procedures) third party notifications.
    4. Service Provider bears the full and complete risk and liability for all loss, theft and/or destruction to any Protected Data that is received, stored or processed by Service Provider. Service Provider will not modify, delete or destroy any Protected Data or media on which Protected Data resides without prior authorization from Customer. Service Provider will maintain and provide to Customer one or more reports that identify any Protected Data or media that have been lost, modified or destroyed. In the event any Protected Data is modified, lost or destroyed due to any act or omission of Service Provider, Service Provider shall be responsible for the prompt regeneration or replacement of such Protected Data. If Service Provider fails to correct or regenerate the lost or destroyed Protected Data within the time reasonably set by Customer, then Customer may obtain data reconstruction services from a third party, and Service Provider shall cooperate with such third party as requested by Customer. In addition to any other damages incurred by Customer, Service Provider will be responsible for the actual costs incurred by Customer for the reconstruction of Protected Data by a third party.
    5. Service Provider warrants that Protected Data will be housed at all times in a secure data center located in the United States, and processed solely within the United States, unless expressly authorized by Customer in writing. Customer understands and agrees that Protected Data may be held in a web-based cloud application through Amazon web services or another third party provider. Service Provider shall ensure that such web-based cloud application meets applicable regulatory records retention requirements.
    6. At no time shall any materials containing Protected Data in Service Provider’s possession or control or information containing Protected Data be stored or held in a form or manner not reasonably accessible to Customer. At Customer’s request, Service Provider shall promptly provide to Customer its information policies and due diligence on the security of Amazon web services and Service Provider’s facilities.
  5. Insurance.
    1. Service Provider shall, at its own cost and expense, procure and maintain in full force and effect during the term of the Agreement, policies of insurance, of the types and in the minimum amounts stated herein, with responsible insurance carriers duly qualified in those states (locations) where the Services are to be performed, covering the operations of Service Provider, pursuant to the Agreement.

      TYPES OF INSURANCE

      LIMITS OF LIABILITY

      (Minimum Amounts)

      Comprehensive or Commercial General Liability and Third Party Property Damage $1,000,000 per occurrence, $2,000,000 aggregate  
      Professional Liability $1,000,000 per occurrence, $2,000,000 aggregate
      Network Breach and Security $5,000,000 aggregate
       
    2. Upon Customer’s request, Service Provider shall provide Customer with certificates of insurance evidencing all of the above coverage, including all special requirements specifically noted above, and shall provide Customer with certificates of insurance evidencing renewal or substitution of such insurance thirty (30) days prior to the effective date of such renewal or substitution. All policies required under the Agreement by Service Provider shall be issued by reputable insurers and rated in Best’s Insurance Guide, or any successor thereto as having a “Best’s Rating” of “A-VIII” or better.
  6. Acceptable Use
    1. Customer may not copy, modify, or create a derivative work, collective work, or compilation of the Services, and many not reverse engineer, decompile or otherwise attempt to extract the code of the Services or any part thereof; and may not use the Services in excess of the authorized number of licensed seats for concurrent users, sites or other criteria specified in Exhibit A. In addition, Customer may not access the Services to monitor its availability, performance or functionality, or for any other benchmarking or competitive purpose.
    2. Customer is further prohibited from (1) attempting to use or gain unauthorized access to Service Provider or to any third party's networks or equipment; (2) permitting individuals or entities other than Authorized Users to use the Services or copy the Services; (3) attempting to probe, scan or test the vulnerability of Services or a system, account or network of Service Provider or any of its customers or suppliers; (4) intentionally interfering or attempting to interfere with service to any user, host or network; (5) transmitting unsolicited bulk or commercial messages in violation of applicable Laws; (7) intentionally restricting, inhibiting, or otherwise interfering with the ability of any other person or customer, to use or enjoy the Services (except for tools with safety and security functions); or (8) intentionally restricting, inhibiting, interfering with, or otherwise disrupting or causing a performance degradation to Service Provider facilities used to deliver the services.
  7. General Indemnity.
    1. Service Provider agrees to indemnify, defend, and hold Customer, Authorized Users and its or their officers, directors, agents, employees, customers and clients (each, a “Customer Indemnitee” and collectively, the “ Customer Indemnitees”) harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines or judgments (collectively “Claims”), including reasonable attorneys' fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from any Customer Indemnitee by reason of any Claim arising out of or relating to any act, error or omission or misconduct of Service Provider, its officers, directors, agents, employees and subcontractors, in connection with their performance of the Agreement, including without limitation, Claims arising out of or relating to: (a) violation of any Laws; (b) violation of any Terms of Services set forth herein; (c) Viruses; or, (d) breaches of any representations made under the Agreement; provided, however, that the foregoing indemnity shall not apply to the extent that the applicable Claim resulted from the acts or omissions of any Customer Indemnitee.
    2. Customer agrees to indemnify, defend, and hold Service Provider together with its officers directors, agents, employees, customers and clients (each, a “Service Provider Indemnitee” and collectively, the “ Service Provider Indemnitees”) harmless from and against any and all Claims (as defined above), including reasonable attorneys' fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from any Service Provider Indemnitee by reason of any Claim arising out of or relating to any act, error or omission or misconduct of Customer, its officers, directors, agents, employees and subcontractors, in connection with their performance of the Agreement, including without limitation, Claims arising out of or relating to: (a) violation of any Laws; (b) violation of any Terms of Services set forth herein; or, (c) breaches of any representations made under the Agreement or the Terms of Service; provided, however, that the foregoing indemnity shall not apply to the extent that the applicable Claim resulted from the acts or omissions of any Service Provider Indemnitee.
  8. Proprietary Rights Indemnification. Service Provider agrees to indemnify, defend and hold Indemnitees harmless from and against any and all Claims, including reasonable attorneys' fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to or recoverable from any Indemnitee arising out of a claim that the Services infringe or misappropriate any United States or foreign patent, copyright, trade secret, trademark or other proprietary right. In the event that Service Provider is enjoined from delivering either preliminary or permanently, or continuing to license to Customer, the Services and such injunction is not dissolved within thirty (30) days, or in the event that Customer is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark or other proprietary right in the use of the Services, then Service Provider shall, at its expense: (a) obtain for Customer the right to continue using such Services; (b) replace or modify such Services so that it does not infringe upon or misappropriate such proprietary right and is free to be delivered to and used by Customer; or (c) in the event that Service Provider is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Service Provider shall reimburse to Customer the full cost associated with Termination Assistance Services.
  9. Indemnification Procedures. Promptly after receipt by Customer of a threat of any action, or a notice of the commencement or filing of any action against Customer or any Indemnitee related to the Service Provider’s provision of Services as described herein, Customer shall give notice thereof to Service Provider, provided that failure to give or delay in giving such notice to Service Provider shall not relieve Service Provider of any liability it may have to Customer or any Indemnitee except to the extent that Service Provider demonstrates that the defense of such action is prejudiced thereby. Customer shall not independently defend or respond to any such claim; provided, however, that: (a) nothing herein shall prevent Customer from responding or providing information to any governmental agency or self-regulatory organization; (b) Customer may defend or respond to any such claim, at Service Provider's expense, if Customer’s counsel determines, in its sole discretion, that such defense or response is necessary to preclude a default judgment from being entered against Customer; and (c) Customer shall have the right, at its own expense, to monitor Service Provider's defense of any such claim. Service Provider shall have sole control of the defense and of all negotiations for settlement of such action. At Service Provider’s request, Customer shall cooperate with Service Provider in defending or settling any such action; provided, however, that Service Provider shall reimburse Customer for all reasonable out-of-pocket costs incurred by Customer (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.
  10. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN OR IN THE AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILFULL MISCONDUCT OF A PARTY. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THE AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE FOR ALL EVENTS, ACTS OR OMISSIONS UNDER THE AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THE AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) A PARTY’S OBLIGATIONS OF INDEMNIFICATION, AS FURTHER DESCRIBED HEREIN; (B) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILFULL MISCONDUCT; OR, (C) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED HEREIN. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
  11. General.
    1. Relationship between Customer and Service Provider. Service Provider represents and warrants that it is an independent contractor with no authority to contract for Customer or in any way to bind or to commit Customer to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of Customer. Under no circumstances shall Service Provider, or any of its staff, if any, hold itself out as or be considered an agent, employee, jointventureor partner of Customer. In recognition of Service Provider’s status as independent contractor, Customer shall carry no Workers’ Compensation insurance or any health or accident insurance to cover Service Provider or Service Provider’s agents or staff, if any. Customer shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship. Neither Service Provider nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit or pension plan of Customer.
    2. Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the state of Arizona and the federal laws of the United States of America. Service Provider hereby consents and submits to the jurisdiction and forum of the state and federal courts in Arizona in all questions and controversies arising out of the Agreement.
    3. Dispute Resolution. In the event of any dispute or disagreement between the parties with respect to the interpretation of any provision of the Agreement, or with respect to the performance of either party hereunder, Customer and Service Provider project managers will meet for the purpose of resolving the dispute. If the project managers are unable to resolve the dispute within five (5) working days, or as otherwise agreed, either party will have the right to submit the dispute to senior level executives (the “Representatives”) who will meet as often as the parties reasonably deem necessary to gather and furnish to each other all essential, non-privileged information that the parties believe germane to resolution of the matter at issue. During the course of these non-judicial dispute resolution procedures, documents used to resolve the dispute shall be limited to essential, non-privileged information. All requests shall be made in good faith and be reasonable in light of the economics and time efficiencies intended by the dispute resolution procedures. The Representatives may mutually agree to appoint a neutral advisor to facilitate negotiations and, if requested by both parties, to render non-binding opinions. No formal proceedings for the judicial resolution of any dispute may be commenced until sixty (60) calendar days following initiation of negotiations under this Section or for such shorter period as the parties may mutually agree to in writing. Either party may then seek whatever remedy is available in law or in equity. The provisions of this Section will not apply to any dispute relating to the parties’ obligations of non-disclosure and confidentiality as further described herein.
    4. Compliance With Laws; Customer Policies and Procedures. Both parties agree to comply with all applicable Laws. Service Provider shall comply with Customer policies and procedures where the same are posted, conveyed or otherwise made available to Service Provider.
    5. Cooperation. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of the Agreement, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other party, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder. Service Provider will cooperate with any Customer supplier performing services, and all parties supplying hardware, software, communication services and other services and products to Customer including, without limitation, the Successor Service Provider. Service Provider agrees to cooperate with such suppliers, and shall not commit or permit any act which may interfere with the performance of services by any such supplier.
    6. Force Majeure. Neither party shall be liable for delays or any failure to perform the Services of the Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. Where Service Provider fails to use its best efforts to minimize such delays, the delays shall be included in the determination of Service Level achievement. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance. A force majeure event does not excuse Service Provider from providing Services and fulfilling its responsibilities relating to the requirements of backup and recovery of Customer Data. Configuration changes, other changes, viruses / malware, or other errors or omissions introduced or permitted to be introduced by Service Provider that result in an outage or inability for Customer to use the Services shall not constitute a force majeure event.
    7. Advertising and Publicity. Service Provider may with written permission, which shall not be unreasonably withheld, refer to Customer directly and/or indirectly in advertisement, news release, or publication.
    8. No Waiver. The failure of either party at any time to require performance by the other party of any provision of the Agreement shall in no way affect that party's right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of the Agreement be taken or held to be a waiver of any further breach of the same provision.
    9. Notices. Any notice given pursuant to the Agreement shall be in writing and shall be given by personal service or by United States certified mail, return receipt requested, postage prepaid or by electronic means (confirmed by United States mail) to the addresses appearing at the end of the Agreement, or as changed through written notice to the other party. Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, and notice mailed shall be deemed effective on the third day following its placement in the mail addressed to the addressee.
    10. Assignment of Agreement. The Agreement, Terms of Service and the obligations of Customer and Service Provider hereunder are personal to the Customer and Service Provider and its respective staff. Neither Customer and Service Provider nor any successor, receiver, or assignee of Customer or Service Provider shall directly or indirectly assign the Agreement, The Terms of Service or the rights or duties created thereunder, whether such assignment is effected in connection with a sale of Customer or Service Provider's assets or stock or through merger, an insolvency proceeding or otherwise, without the prior written consent of Customer and/or Service Provider, such consent not to be unreasonably withheld or delayed.
    11. Counterparts; Facsimile. The Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.
    12. Entire Agreement. The Agreement and its attached exhibits together with the Terms of Service constitute the entire agreement between the parties and supersede any and all previous representations, understandings or agreements between Customer and Service Provider, whether written or oral, as to the subject matter hereof, including specification sheets, shrink-wrap terms, click wrap terms, online terms, service guides, catalogs, use policies, or other terms in any form (“Ancillary Documents”). An instrument in writing signed by the parties may only amend the Agreement. If access to or use of any products or services requires Customer or any Authorized User to accept the terms of any Ancillary Documents, Customer and/or the user may access the product or service by “accepting” the terms of such Ancillary Documents.
    13. Cumulative Remedies. All rights and remedies of Customer herein shall be in addition to all other rights and remedies available at law or in equity including, without limitation, specific performance against Service Provider for the enforcement of the Agreement, and temporary and permanent injunctive relief.
    14. Non-Solicitation.  Without the prior written consent of the other party, neither party will, during the term of the Agreement, and for a period of one (1) year from the date of the termination of the Agreement, solicit for employment or hire, or permit any of its affiliates to solicit for employment or hire, or otherwise engage the services of, any employee, consultant or independent contractor of the other party with whom such party had contact or who became known to such party in connection with the performance of the Agreement.


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