Kenexis Integrated Safety Suite Subscription Agreement
This Subscription Agreement (“Subscription Agreement”) is entered into as of the date the Client (as defined in the Sales Order) clicks “I accept” to this Subscription Agreement (the “Effective Date”, unless another Effective Date is set forth on the Sales Order), and is by and between Kenexis Consulting Corporation (the “Company”), an Ohio Corporation, whose principal place of business is 3366 Riverside Drive, Suite 200, Columbus, OH 43221, and Client. This Subscription Agreement contemplates the subscription to and licensing of Company’s hosted solution called Kenexis Integrated Safety Suite (the “Software”) and related services and components. By executing this Subscription Agreement, Client and Company are agreeing to be bound by all the terms and conditions contained herein as well as the other documents referenced herein, including but not limited to the Sales Order executed by Client which sets forth the specific Software subscription terms and fees (with the Subscription Agreement and Sales Order being collectively referred to as the “Agreement”). Company and Client are each referred to as a “Party” and collectively the “Parties”.
Ownership and Subscription Terms.
1.1 Subscription. Client is subscribing to use the Software as set forth in the Sales Order, which may include a limit to the number of persons and/or the named persons who may access and use the Software (“Users”). Subject to Client’s compliance with its obligations under this Agreement, Company hereby grants to Client a non-exclusive, non-transferable, limited license to Client to use the Software for the duration of such subscription set forth on the Sales Order, and pursuant to the other terms and restrictions set forth in this Agreement.
1.2 Subscription Restrictions. The Software is only permitted to be used for the purposes of instrumented safeguard design basis development and management. Client may not use more Software licenses, or permit more Users than as paid for pursuant to the Sales Order, or permit non-specifically permitted persons to use the Software if the Users are named, and Client may not use the Software in any manner other than as specifically set forth in this Agreement. Client shall not copy, modify, distribute, publish, publicly display, or create adaptations or derivative works of the Software, any content available through the Software (“Content”), or any other intellectual property of Company; provided, however, that Client may generate, use and distribute reports that include information derived from or stored by the Software for uses related to Client’s internal business purposes. Client shall not de-compile, reverse engineer, disassemble or otherwise reduce or manipulate the Software, including the underlying code of the Software, other than as expressly permitted in writing by Company. The Software contains code-based protections that serve to prevent and remedy violations of the subscription/license restrictions.
1.3 Access to and Use of Software. Client shall be solely responsible for procuring and maintaining any hardware and other software necessary for the complete utilization of the Software, including but not limited to computers that can access and operate the Software via an internet connection and a sufficient web browser to interact with the Software. Such minimum specifications can change from time to time upon written notice by Company to Client.
1.4 Company Property. All materials provided by Company to Client with respect to the Software, including but not limited to the Software code (whether in object code or source code form), proprietary data, proprietary documentation associated with the Software and its related components, or other proprietary information developed or provided by Company or its suppliers, such as the Content, logos, trademarks/service marks, trade names, and any non-public know-how, methodologies, training processes or procedures, equipment, or other processes used by Company to provide the Software and the Services (defined below) to Client, including but not limited to all of Company’s copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent in and appurtenant to the Software (collectively the “Company Property”), shall remain the sole and exclusive property of Company.
1.5 Other Services. In addition to the Software and related services, Client may purchase other services or programs provided by Company (the “Value-Added Services”). Any such Value-Added Services shall be set forth in and subject to separate agreements.
2.1 Implementation and Training Services. Company shall provide the implementation, project management, data conversion and setup, training, and other services (collectively the “Services”) as specifically set forth in the Sales Order or in separate agreements and at the prices set forth therein. Unless otherwise agreed by Client, all Services are performed by Company on a time and materials basis at Company’s then-current hourly rates. Training services may including training on the operation of the Software and/or training on engineering principals, with the latter constituting Content available via the Software.
2.2 Software Support. Company shall provide maintenance, support and updating services (“Maintenance Services”) as required in the sole determination of Company to keep the Software in a reasonable operational state. Other Software updates requested by Client that Company does not consider necessary can be performed as an additional Tier 2 support service. Company will provide helpdesk support for the Software and hosting services between 7:00 am and 7:00 pm Eastern time, Monday through Friday excluding holidays (“Business Hours”). Client shall endeavor to report technical issues or problems with the Software or the hosting services within 30 minutes following the occurrence of such issue or problem, via e-mail to email@example.com, including the time, description, and conditions of the problem.
2.3 Tier 1 Support. For Software and hosting service problems, such as a User’s ability to access and use the Software properly, lost passwords, and add/delete/modify User accounts, such Maintenance Services shall be provided via email or web site support form submission. Company response shall be either via email or phone, based solely on Company support staff discretion. Company will respond to each such reported issue or problem promptly, and in no event later than 24 hours for issues reported during Business Hours. The fees for Tier 1 support are included in the annual Subscription fees.
2.4 Tier 2 Support. For resolving questions about how to use the Software (e.g., the Software is operational but the User needs support in inputting data or executing calculations), where the explanation for such use is contained in the software user manual or software online training course, such support shall be provided at the rate of $195 per hour. Each licensed software seat shall include 16 hours of Tier 2 support for a new license and 4 hours of support for a renewal license. Tier 2 support hours beyond those included with the software license agreement may be purchased from Kenexis by a separate contract. Any Users who have successfully completed the Kenexis Instrumented Safeguard Suite training courses for the applicable modules are not expected to require Tier 2 support, as all such information would have been conveyed at such training course.
2.5 Tier 3 Support/Engineering Consulting Services. For resolving questions related to the design of facilities for which a User is using the Software, or for using Company to complete tasks using the Software on behalf of Client, such support shall be considered Engineering Consulting Services and shall be billed at the applicable rates (currently between $200 to $272 per hour). Before undertaking Engineering Consulting Services, Client and Company must agree on the scope and cost of such services, which agreement may take the form of an electronic agreement.
2.6 Software Modification. Client may request that Company incorporate certain features, enhancements, customizations or modifications into the Software. Company may, at its sole discretion, undertake to incorporate such changes, but shall not be obligated to do so. All fees for such custom modifications shall be as agreed upon in writing by the Parties in advance of such modifications. Unless otherwise agreed in writing, Company may incorporate such changes on a non-exclusive basis and provide the Software so modified to any or all of Company’s customers, and title to all such enhancements, customizations or modifications shall remain the sole property of Company.
2.7 Hosting and Backup Services. Company will provide Software monitoring 24 hours a day, 7 days a week. Company will provide hosting support pursuant to the terms below. Company shall protect Client data stored on Company’s servers using reasonable security measures and will provide backup of such data on a daily basis via electronic media stored off site in secure facilities. Such backup storage is used to maintain disaster recovery capabilities sufficient to restore the data within 7 days of a disaster. Company shall not be required to store such backup materials for longer than 30 days. Client hereby grants Company and its service providers the non-exclusive, non-transferable right and license to store, copy, record, transmit, maintain, display, view or otherwise use all Client data stored on the hosting service to the extent necessary to provide hosting and backup services to Client.
2.8 Service Level Credits. The Software shall be accessible to Client 24 hours a day, 7 days a week, except for scheduled maintenance (which may occur every Saturday and Sunday from 8 pm Saturday – 8 pm Sunday US Eastern time, upon providing notice of such maintenance to Client), required repairs and any loss or interruption of service due to causes beyond the control of Company or which are not reasonably foreseeable by Company, including, but not limited to, force majeure events described in Section 10.2. In the event that the Software is not available to Client for reasons other than scheduled maintenance or force majeure, Client shall have the right to receive a credit against any amounts due to Company for the Software in an amount equal to the subscription fees payable to Company for said month multiplied by a fraction, the numerator of which is the number of hours that the Software was not available to Client during the month in excess of four (4) and the denominator of which is the total number of hours during the month. In order for Client to exercise its right to receive a service credit pursuant to this subsection, Client must deliver to Company written notice within 5 days of the end of the event giving rise to such service credit.
2.9 Failure or Interruption of Hosting Services. Company will provide Client with advance notice of any planned maintenance to the Software (other than during the scheduled maintenance time set forth in the subsection immediately above) that will cause the Software to be inaccessible to Client. Client will have the right to terminate this Agreement, effective immediately upon written notice of termination to Company if, for reasons other than force majeure pursuant to Section 10.2, the Software is inaccessible to Client for more than 12 “peak hours,” defined as between 8 am to 8 pm Eastern time, Monday through Friday (non-holiday), during any calendar month. In order for Client to exercise its right of termination pursuant to this Section, Client must deliver to Company written notice within 5 days of the end of the month in which the interruption occurred.
2.10 Data Security Services. Company will provide data security, as set forth in this Section, for Client information that is entered and stored on Company servers. Company will provide data security monitoring 24 hours a day, 7 days a week. Company shall protect Client data stored on Company’s servers using reasonable security measures. Measures utilized to secure Client data include: Microsoft ASP.NET Form Authentication for management of access to the web site, Microsoft ASP.NET Authorizations for limiting user access only to those pages of the site to which a user is authorized access, Microsoft ASP.NET Role Enforcement for limiting client interactions with data to what has been authorized for specific activities being undertaken, Microsoft SQL Authentication Services for management of access to databases where Client data has been stored, and hypertext transfer protocol secure (HTTPS), for encrypted transport layer security from Client web browsers through Company servers. Company regularly audits active servers to ensure that all security policies and security design features are always implemented.
3.1 Fees and Payment Terms. Client shall pay to Company all amounts due hereunder in U.S. currency. All Software subscription fees, Services fees, Maintenance Services fees and Taxes (as defined in Section 3.2) for the first year are due upon executing this Agreement (unless otherwise agreed by the Parties). Unless otherwise stated on the Sales Order or in another writing signed by Company, all other invoices, fees and Taxes shall be due and payable within thirty (30) calendar days of invoice date. If Client determines that Company has exceeded its subscription parameters or restrictions set forth on the Sales Order, Client may invoice Company for such overage. Timely payment of all invoices due is a condition precedent to Company providing the Software subscription, Services and Maintenance Services hereunder. Client agrees to pay a late payment fee on all past due invoices equal to the lesser of one and one-half percent (1-1/2%) of the amount due per month or the maximum amount allowed by law, whichever is lower. In addition and without prejudice to Company’s other rights as set forth herein, Company shall have the right to suspend access to the Software (and the data stored thereon) until all sums owed to Company are paid in full. Actual travel and other expenses incurred by Company shall be paid by Client within thirty (30) calendar days of invoice date. All fees are subject to change after the Initial Term (as defined in Section 9.1) of this Agreement.
3.2 Taxes. Client shall be solely responsible for and shall pay any and all sales and other taxes, however designated, which are now or hereafter imposed by any governmental authority or agency that are based on the payment of any amount by Client to Company pursuant to this Agreement. Taxes include any sales, use, excise, value-added, withholding taxes, or other taxes based upon performance of this Agreement, including taxes, interest and penalties that are levied or assessed by a governmental authority, excluding taxes based on Company’s net income (collectively, “Taxes”).
4.1 Confidential Information. Both Parties acknowledge that each is the owner of valuable trade secrets and other confidential information, and that they license certain of such information from others. Such materials include, but are not be limited to, Company Property, the Software and other computer code, technical and business information regarding either Party’s inventions or products, technical procedures, research and development methods and results, confidential financial information, training materials, marketing and business plans, and customer information. Both Parties acknowledge that, in performing under this Agreement, each may have access to confidential information of the other and may have password access to secure functions and facilities provided by the other (all such information referred to herein as “Confidential Information”). The Parties agree that the disclosure of such Confidential Information would irreparably harm the Party whose information is disclosed. Therefore, the Parties understand and agree to the following:
Each Party shall, during the term of this Agreement and thereafter, take all steps reasonably necessary to hold in trust and confidence and to protect from disclosure to the public or to third parties Confidential Information of the other to the same extent and in the same manner that it protects its own Confidential Information, but in all cases at no less than a reasonable standard.
Client agrees to inform its employees and agents who will have access to or use of the Software or other Company Property of the confidentiality of the same. Client shall fully cooperate with Company in the enforcement of any of its rights that are violated by Client, its employees, or by any other third party whose violation was enabled by Client.
Company agrees to inform its employees and agents who will have access to or use of the Software or other Client Property of the confidentiality of the same. Company shall cooperate fully with Client in the enforcement of any of its rights that are violated by Company, its employees, or by any other third party whose violation was enabled by Company.
Confidential Information does not include: (i) information that is now or hereafter becomes, through no act or omission of the Party receiving the information, generally known to the public or in the public domain; (ii) information that was rightfully acquired by the receiving Party prior to entering into this Agreement and without restriction on the information’s use and disclosure; or (iii) information that has been or is hereafter received by the receiving Party from a third party who has rightfully and lawfully disclosed the information to the receiving Party. Notwithstanding the above, the Software and all Company Property shall be considered Company’s Confidential Information.
4.2 Remedy/Injunctive Relief. The Parties acknowledge that disclosure of any Confidential Information may give rise to irreparable injury to the Party whose information is disclosed, which injury may be inadequately compensated in damages. Therefore, either Party may seek injunctive relief against the other’s breach or threatened breach of this Section 4 as well as any other legal remedies that are available.
5.1 Company Warranties. Company represents and warrants that: (A) Company has the power and authority to enter into and perform its obligations under this Agreement; (B) the Services and Maintenance Services shall be performed and provided in a workmanlike manner using commercially reasonable efforts; and (C) Company has the right to use and license the Company Property and that the Company Property does not infringe intellectual property rights of any third party enforceable in the United States. Client’s exclusive remedy for breach of the warranty set forth in this Section is: Company will at its option and expense: (X) obtain the right for Client to use the Software; (Y) replace or modify the Software so that it is no longer infringing; or, if it is commercially impractical to accomplish (X) or (Y), (Z) terminate the subscription for the Software. If Company terminates the subscription for the Software under this Section: (i) Client will cease to use the Software and have all of its User accounts disabled and (ii) Company will refund Client, as Client’s sole and exclusive remedy, an amount equal to the prepaid subscription fees paid under this Agreement for the terminated subscription prorated over the remainder of the applicable subscription term.
5.2 Client Warranties. Client represents and warrants that: (A) Client has the power and authority to enter into and perform its obligations under this Agreement; and (B) any data, documents or other material used with or downloaded or uploaded to the Software by Client shall not (i) infringe the intellectual property rights of any third party; (ii) violate any applicable law, statute, ordinance, regulation or treaty; (iii) be defamatory, libelous, unlawfully threatening or harassing; (iv) be obscene or indecent; or (v) contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate the Software, the server, or any system, data or personal information of any person or entity.
Disclaimer of Warranties.
6.1 Software and Services Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 5 ABOVE, COMPANY MAKES NO ADDITIONAL WARRANTIES HEREUNDER, AND COMPANY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE USE OF THE SOFTWARE, ACCESS TO DATA OR ANY HOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. ALTHOUGH CERTAIN OF THE SOFTWARE AND SERVICES ARE DESIGNED TO HELP CLIENTS COMPLY WITH APPLICABLE LAWS AND REGULATIONS, COMPANY HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SUFFICIENCY OR ACCURACY OF THE SOFTWARE OR SERVICES IN THIS REGARD; MOREOVER, VARIOUS COUNTRY, STATE AND LOCAL LAWS MAY APPLY, AND THE SOFTWARE DOES NOT INCORPORATE ALL SUCH LAWS’ REQUIREMENTS. ANY SUCH LAWS AND REGULATIONS MAY CHANGE FROM TIME TO TIME, AND THE SOFTWARE MAY NOT BE UPDATED TO REFLECT SUCH CHANGES. CLIENT SHOULD CONSULT ITS OWN LEGAL COUNSEL WITH RESPECT TO COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS. ALTHOUGH CERTAIN OF THE SOFTWARE AND SERVICES ARE DESIGNED TO HELP CLIENTS IMPROVE SAFETY AND DECREASE RISK, COMPANY HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SUFFICIENCY OR ACCURACY OF THE SOFTWARE OR SERVICES IN THIS REGARD. IT IS CLIENT’S SOLE RESPONSIBILITY TO BE COMPETENT AND PROFICIENT IN THE PROVISION OF ITS OWN SERVICES, EVEN IF SUCH SERVICES ARE INFLUENCED OR AIDED BY THE SOFTWARE OR SERVICES.
Limitation of Liability.
7.1 Client Responsibilities. Client agrees that Company shall have no responsibility or liability for Client’s use and safekeeping of passwords being used to access the Software or the data stored thereon. Client shall not share its password with any other person, nor shall client permit any Users to do so or otherwise permit other persons access to the Software through such User’s account. Password security shall be the responsibility of Client. Client agrees that under no circumstances will Company be responsible or have any liability for Client’s use of the data submitted, processed, stored, or retrieved with, by or in connection with the Software. Company shall perform backups of data stored on its servers once every 7-day period, and Company shall not be liable for any expense or damage arising out of any erasure, damage, or destruction of Client’s files, data or programs that occur after a regular Company data backup but before the next scheduled regular Company backup.
7.2 Limitations on Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA OR BUSINESS INFORMATION) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE OR ACCESS THE SOFTWARE, SERVICES, CONTENT, OR CLIENT DATA, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF DAMAGES SHALL BE EFFECTIVE EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THE MAXIMUM LIABILITY OF COMPANY TO CLIENT FOR COMPENSATORY DAMAGES FOR ANY REASON AND UPON ANY CAUSE OF ACTION BROUGHT UNDER OR ASSOCIATED WITH THIS AGREEMENT, THE SOFTWARE, THE SERVICES, OR OTHERWISE BETWEEN THE PARTIES, SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO COMPANY FOR THE MOST RECENT ONE (1) YEAR PERIOD OF THE AGREEMENT UP TO THE DATE SUCH LIABILITY AROSE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, AND STRICT LIABILITY.
8.1 Client Indemnification. Client shall indemnify, defend and hold harmless Company, its owners, officers, employees, agents, successors and assigns from and against any and all claims, actions, proceedings, judgments, losses, liabilities, costs and expenses (including attorneys’ fees) (collectively, “Liabilities”) arising from claims by any third party against Company that are: (A) directly or indirectly caused by Client’s actions or omissions; (B) the result of a transaction or dispute between Client and any third party; (C) based on or caused by unauthorized access to the Software or Services using a Client password or account; or (D) based on facts or alleged facts, which if true, would constitute a breach of the Client’s representations, warranties, or covenants under this Agreement or any related agreement.
8.2 Company Indemnification. Company shall indemnify, defend and hold harmless Client, its owners, officers, employees, agents, successors and assigns from and against any and all Liabilities arising from claims by any third party that the Software or Company Property infringes the intellectual property rights of such third party. Company shall have no liability to Client under this Section 8.2 to the extent that any suit or claim of infringement is based upon: (A) the use of the Software or Services in combination, operation, or use with any software or product not furnished or recommended by Company; or (B) use of the Software or Services in a manner other than for which it was intended, if infringement would have been avoided if such unintended use had not occurred.
Term and Termination.
9.1 Term and Renewal. This Agreement shall begin on the Effective Date and continue for the period set forth in the section entitled “Duration” in the Sales Order (the “Initial Term”), unless terminated earlier as set forth below. If no Initial Term is set forth in the Sales Order, the Initial Term will be 1 year from the Effective Date.
9.2 Termination. Company may terminate this Agreement and the subscription/license granted to Client, as well as suspend access to the Software or any data stored therein, if Client is past due in payments or is in material default of any provision of this Agreement or any document signed by the Parties and such default has not been cured within thirty (30) calendar days (or five (5) calendar days in the case of past due payments) after Company gives Client written notice describing the default. Client may terminate this Agreement if Company is in material default of any provision of this Agreement and such default has not been cured within thirty (30) calendar days after Client gives Company written notice describing the default. Client may terminate all or part of this Agreement and its subscription for any reason by giving written notice to Company of such termination. Upon termination by Client, Client will retrieve Client’s own data and immediately cease to use the software.
Either Party may terminate the Agreement without prior notice to the other if: (i) the other Party files a petition for bankruptcy or is adjudicated a bankrupt entity; (ii) a petition in bankruptcy is filed against the other Party and is not discharged within sixty (60) calendar days; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy law; (iv) the other Party discontinues its business; or (v) a receiver is appointed for the other Party or its business.
9.3 Effect of Termination. Upon termination by reason of Client’s default, Company may: (A) declare all amounts owed by Client to be immediately due and payable; (B) deactivate Client’s access to the Software and/or require that Client cease any further use of the Software; and (C) remove and destroy any Client data stored on Company servers. Upon the termination of this Agreement for any other reason, the rights and licenses, except where otherwise provided, that were granted to each Party under this Agreement shall cease. Prior to termination, Client shall have the ability to export all Client data. Upon termination, Client may no longer have such ability to export its Client data, and Company may delete all such Client data upon termination.
9.4 Rights and Survival. Except where specifically provided, termination of this Agreement shall be without prejudice to any other rights that either Party may have at law or in equity. When this Agreement is terminated for any reason, those provisions that either expressly or by their nature survive termination will survive termination, which provisions include but are not limited to Sections entitled Confidentiality, Disclaimer of Warranties, Limitation of Liability, Indemnification, Term and Termination, and Miscellanous.
10.1 Notices. Notices shall be given in writing and may be delivered by U.S. mail, overnight delivery service, fax, confirmed e-mail, or personal delivery to the intended recipient of the notice. The Parties shall designate one or more persons as the points of contact, specifying the name, title, address, phone, mobile phone and e-mail address and the responsibility of each person. A Party may change a contact upon five (5) calendar days written notice to the other, which notice shall contain the new contact information as set forth above.
10.2 Force Majeure. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of events out of the control of such Party, such as, but not limited to, flood or other natural disaster, riot, fire, pandemic, judicial or governmental action, labor disputes (and if the Software is hosted by Company or its service provider, any actions or failures of the hosting or internet service provider or of any telecommunications service providers or facilities in the chain of communication to and from Company’s server) or any other causes beyond the control of either Party, the Party experiencing the force majeure condition shall be excused from performance to the extent that it is prevented, hindered or delayed by such causes.
10.3 Separate Parties. The Parties agree that nothing in this Agreement shall be construed to create a partnership, joint venture, franchise or employee-employer relationship among Company and Client. Neither Company nor Client is an agent of the other, and neither is authorized to make any representation, contract or commitment on behalf of the other unless specifically requested or authorized to do so in writing by the other.
10.4 Audit Rights. During the term of this Agreement and for one (1) year after termination, on advance notice of no less than thirty (30) calendar days and no more than once every six (6) months, Company shall have the right to conduct, or have conducted by an independent third party auditor, during regular business hours at Client’s offices and in such a manner as not to interfere unreasonably with Client’s normal business activities, a remote and/or on site inspection and audit of Client’s records, processes, relevant systems, hardware, software and any other applicable materials to verify Client’s compliance with the terms of this Agreement.
10.5 Severability and Interpretation. If any provision(s) of this Agreement is held by a court of competent jurisdiction to be contrary to any applicable law or regulation, the Parties agree that such provision shall be construed so that it can be found lawful to the fullest extent possible and the remaining provisions of this Agreement shall remain in full force and effect. If such provision cannot be construed in a fashion that is lawful or is otherwise found void, then the Parties agree that the remaining provisions of the Agreement shall continue in full force and effect as if said void provision never existed and as long as the removal of such void provision does not alter the obligations of the Parties. If an ambiguity or question of intent arises, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of this Agreement.
10.6 Assignment. Generally, Client may not assign this Agreement or any of its rights and obligations under this Agreement, whether by operation of law or otherwise, without the prior written permission of Company. Company may assign this Agreement and any of its rights and obligations under this Agreement upon written notice to Client.
10.7 Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Ohio without regard to conflict of laws principles. The Parties hereby submit to the exclusive jurisdiction of the state and federal courts located in Franklin County, Ohio for the resolution of all disputes under, arising from or relating to this Agreement, its performance or otherwise between the Parties, and both Parties agree that they shall not contest venue in such courts.
10.8 Legal Fees and Costs. The prevailing Party will be entitled to collect from the other Party, the prevailing Party’s reasonable legal fees and costs in connection with the enforcement of this Agreement.
10.9 Waiver. The failure of either Party hereto to insist upon strict performance of any covenants or obligations hereunder, irrespective of the length of time for which such failure continues, shall not be a waiver of that Party’s right to demand strict compliance in the future. No express or implied consent to, or waiver of, any breach or default of the performance of any obligations hereunder shall constitute a consent to, or waiver of, any other breach or default in the performance of the same or any other obligations hereunder. No term or provision of this Agreement will be deemed waived and no breach will be deemed excused, unless such waiver is in writing and signed by the Party claimed to have waived.
10.10 Change of Control. Client will immediately notify Company in the event of any change in ownership or control of Client.
10.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
10.12 Headings. The section headings used in this Agreement are for reference and convenience only and shall not enter into the interpretation of this Agreement.
10.13 Entire Agreement. This Agreement, including the Sales Order and the Subscription Agreement, as well as any other documents attached hereto, terminates, cancels and supersedes any and all previous agreements, either oral or written, between the parties hereto and contains all the covenants and agreements between the Parties regarding the Software. Each Party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not contained herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. All exhibits, documents and schedules to which reference is made in this Agreement are deemed incorporated in this Agreement, whether or not actually attached. Except as otherwise stated in this Agreement, this Agreement may be amended only in a writing signed by both Parties.