You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
“Affiliate” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.
“Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means Services that You or Your Affiliates purchase by credit card payment or under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the online, Web-based applications and platform provided by Us via http://www.heretto.com and/or other designated websites as described in the User Guide, that are ordered by You as part of a free trial, under an Order Form, or by credit card purchase, including associated offline components but excluding Third Party Applications.
“Subscription Tier” means the level of access to the Purchased Services You select. Selection of a Subscription Tier is required prior to gaining access to the Purchased Service.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services and are identified as third-party applications.
“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors, and agents; or third parties with which You transact business.
“We,” “Us” or “Our” means the Company described in Section 13 (Miscellaneous).
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means all electronic data or information submitted by You to the Purchased Services.
2.1 Provision of Services. We shall make the Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
2.2. Subscriptions. Unless otherwise specified in the applicable Order Form, Services are purchased as component content management subscriptions and may not exceed the specified number of components or Users. Subscriptions are designated for use by a single company or other legal entity and cannot be shared or used by more than one company or other legal entity.
2.3. Cloud Service. The Cloud Service offerings, or Subscription Tiers, are described below. Your selected entitled Cloud Service offering is specified in an Order Document. The Order Document will consist of the Quotation that is provided to You and the Proof of Entitlement (PoE) You will receive confirming the start date and term of the selected Cloud Services.
2.4 Heretto Professional. For any size team. Includes full-featured Heretto Component Content Management System, and content authoring with up to 1500 unique files and ten reviewers per author. Includes all the features in Team plus DITA specialization, DITA OT publishing, branching, groups and roles, custom workflows, learning, and training content types, MathML support, SimpleXML integration, oXygen integration, XTM integration.
2.5 Heretto Business. For any size team. Includes full-featured Heretto Component Content Management System, and highly configurable content authoring with up to 2500 unique files and twenty reviewers per author. Includes all the features in Professional plus configurable authoring user interface, basic taxonomy, and CMS metadata, personal Customer Success Manager, single sign-on (SAML and LDAP) available.
3. USE OF THE SERVICES
3.1 Our Responsibilities. We shall: (i) provide to You with support and service levels for the Purchased Services based on Your selected Subscription Tier as set forth in the Service Level Agreement, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours advance notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
3.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity, and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent, or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. The license granted to You is non-exclusive and nothing in this Agreement shall prevent Us from offering the Services to any other party.
3.3. Usage Limitations. Services may be subject to other limitations, including, but not limited to, limits on disk storage space, the number of components in content management, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
3.4. No Sensitive Personal Information. You agree not to use the Services to collect, process, or manage any sensitive personal information, including but not limited to any protected health information, confidential health information, or sensitive medical information. We will not be responsible for any liability resulting from your use of the Services to collect or process sensitive personal information.
4. THIRD-PARTY PROVIDERS
4.1. Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.
4.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Subscription Fees and Payment. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on Purchased Services and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the Subscription Tier purchased cannot be downgraded during the relevant subscription term. Subscription fees are based on annual periods that begin on the subscription start date and each annual anniversary thereof. You will provide Us with valid and updated credit card information, or with a valid Order Form. If you provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial Subscription Term and any renewal subscription term as set forth in Section 12.2. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If an Order Form indicates that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
5.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
5.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute made by you within fifteen (15) days of notification of the applicable charges and You are cooperating diligently to resolve the dispute.
5.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes“). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property, and employees.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title, and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame, or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
6.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title, and interest in and to all of Your Data.
6.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
6.5. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally 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. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall 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 the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party 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 the Receiving Party containing protections no less stringent than those herein.
7.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 8.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
7.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We warrant that (i) the Purchased Services shall perform materially in accordance with the User Guide and (ii) the functionality of the Purchased Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.
8.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS.” WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE SERVICES WILL OPERATE ERROR-FREE, WITHOUT INTERRUPTION, OR IN COMBINATION WITH OTHER SOFTWARE OR SERVICES (EXCEPT AS PERMITTED BY THIS AGREEMENT), OR THAT ALL PROGRAM DEFECTS ARE CORRECTABLE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (“Claim“) made or brought against You by a third party alleging that the use of the Purchased Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability), and (c) provide to Us all reasonable assistance, at Our expense. We shall have no liability regarding any infringement Claim arising out of: (i) use of other than a current unaltered release of the Purchased Services unless the infringing portion is also in the then-current release; (ii) use of the Services in combination with software, data or equipment that is not Ours if the infringement was caused by such use or combination; (iii) any modification or derivation of the Purchased Services not specifically authorized in writing by Us; or (iv) use of any third-party products.
9.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party (i) alleging that Your Data, or Your use of the Purchased Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, or (ii) arising on account of Your modification or enhancement of the Purchased Services, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
9.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $50,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION< ANY LOSS DUE TO BUSINESS INTERRUPTION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR OTHER INTANGIBLE LOSS. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all Subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
11.2. Term of Purchased Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein, or if paying by credit card on the date payment is made. Except as otherwise specified in an applicable Order Form, all Subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 5% over the pricing for the relevant Purchased Services in the immediately prior subscription term unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
11.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in XML format along with non-XML files in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
11.6. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data) and 13 (Who You Are Contracting With, Notices and Governing Law) shall survive any termination or expiration of this Agreement.
12.1. Who you are contracting with: Heretto, 130 N Winton Road Box 10250, Rochester, NY 14610 USA. Heretto is a Service Mark of Jorsek, Inc., a Delaware corporation, DBA Heretto.
12.2. Notices: Any notice required or permitted hereunder shall be in writing and shall be deemed to have been duly given (i) upon hand delivery, (ii) on the third day following delivery to the U.S. Postal Service as certified mail, return receipt requested and postage prepaid, (iii) on the first day following delivery to a recognized overnight courier service, fee prepaid and return receipt or other confirmation of delivery requested, (iv) upon confirmation of receipt by the party to receive such notice, of a fax sent to the fax number of such party, or (v) upon confirmation of receipt by the party to receive such notice, of an email sent to the email address of such party. All notices to Heretto shall be sent to the Chief Revenue Officer via email@example.com.
12.3. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of New York, excluding its conflict of laws principles. In the event that any legal proceedings are commenced with respect to any matter arising under this Agreement, the parties specifically consent and agree that the courts of the State of New York and/or the Federal Courts located in the State of New York will have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings, and that the venue of any such action will be in Monroe County, New York and/or the U.S. District Court for the Western District of New York. Additionally, the party that loses any such proceeding will pay all costs and expenses incurred by the other party(s) in connection therewith, including all attorneys’ and other professional fees and expenses.
12.4. Assignment. You may not assign this Agreement without Our prior written consent. Any attempted assignment or delegation without Our prior written consent shall be null and void.
12.5 Partial Invalidity. If any provision of this Agreement is held invalid or unenforceable by competent authority, that provision will be construed so as to be limited or reduced to be enforceable to the maximum extent compatible with the law as it shall then appear. The total invalidity or unenforceability of any particular provision of this Agreement will not affect its other provisions and this Agreement will be construed in all respects as if the invalid or unenforceable provision were omitted.
12.6 Force Majeure. Neither party will be liable for any costs or damages due to nonperformance under this Agreement arising out of any cause not within the reasonable control of such party and without its fault or negligence. Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement that directly results from any failure of the other party to perform its obligations as set forth in this Agreement.
12.7 Waiver. No waiver of a breach of any term of this Agreement will be effective unless in writing and duly executed by the waiving party. No such waiver will constitute a waiver of any subsequent breach of the same or any other term of this Agreement. No failure on the part of a party to exercise, and no delay in exercising, any of its rights hereunder will operate as a waiver thereof, nor will any single or partial exercise by a party of any right preclude any other or future exercise thereof or the exercise of any other right. No course of dealing between the parties will be deemed effective to modify, amend or discharge any part of this Agreement or the rights or obligations of any party hereunder.
12.8 Entire Agreement. This Agreement, together with all its Order Forms, contains the entire understanding of the parties with respect to the transactions contemplated and supersedes any prior agreements or understandings among the parties with respect to the subject matter hereof. This Agreement may only be amended by a written document signed by all parties. There are no representations, warranties, or obligations of any party not expressly contained herein. In the event of any conflict between the terms of this Agreement and any of its Order Forms, the terms of this Agreement will control.
12.9 Survival. The provisions of this Agreement that by their nature would survive its termination will survive indefinitely.
12.10. Construction. Any interpretation of this Agreement will not presume that its terms should be more strictly construed against one party by reason of any rule of construction or authorship. The headings in this Agreement are for convenience only. They do not constitute a portion of this Agreement and will not be used in any construction of it. For purposes of this Agreement, (i) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; and (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa.
12.11. Claims; Injunctive Relief. Any claim arising out of or related to this Agreement must be brought no later than one year after it has accrued. Recognizing and acknowledging that any breach by either Party of the provisions of Sections 3, 6 or 7 may cause the other Party irreparable damage for which other remedies may be inadequate, the Parties agree that, in addition to monetary damages and any other remedies available to the Parties at law or in equity, the Parties will have the right to petition for such equitable relief as may be necessary to prevent such a breach or threatened breach without having to prove actual damages.
12.12. Purchase Orders and Related Items. You agree that any purchase order or similar document that You may issue in connection with this Agreement will be for ordering purposes only and that any terms and conditions on such purchase order will be void and of no force or effect. If this Agreement is entered into in response to Your request for proposal or similar document (“RFP”), no terms of the RFP and no response to such RFP by Us will be incorporated into this Agreement, all of which will be of no force and effect.
12.13. Publicity. We have the right and authority to issue a press release describing the license and the parties’ relationship. We will also have the right to use Your name and logo as Our client in marketing materials.
12.14. Third-Party Beneficiary. You hereby agree that the licensors of third-party software to Us and each Third-Party Application provider will be considered third party beneficiaries of this Agreement and will be entitled to bring a direct action against You in the event of a breach of any applicable provisions of this Agreement, pursuant to the terms and conditions of this Agreement.
12.15. Independent Contractors. Your relationship to Us will be that of an independent contractor. Neither You and Your employees nor We and Our employees are agents or legal representatives of the other party for any purpose and have no authority to act for, bind, or commit the other party. This
Agreement does not establish a franchise, joint venture, or partnership, or agency relationship.
12.16. Non-Solicitation. You will not during the Term and for a period of one year afterward knowingly entice, persuade or otherwise solicit any of Our employees, contractor/consultants, or other representatives to leave Our services for any reason, which restriction excludes general solicitations not directed at Your employees.