Effective: January 28, 2019
“Affiliate” shall mean, with respect to a party, any entity, whether incorporated or not, that directly or indirectly controls, is controlled by, or is under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Alerts” or “Alert” shall mean the request(s) entered via the Services by Users including or excluding one or several keyword(s) determined by them to be monitored.
“Beta Services” shall mean the services (i) provided by CivicFeed that are not generally available to customers, and (ii) that are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import.
“CivicFeed Services” or “Services” shall mean the specific proprietary and generally available software-as-a-service product of CivicFeed, specified in Customer’s Order Form, including any related code developed and provided by CivicFeed to Customer for use in connection with the such proprietary product, which may include SDK(s) or other similar code developed and provided by CivicFeed. CivicFeed Services exclude any Beta Services.
“Customer Application” shall mean Customer’s mobile applications or websites, as made available to its End Users.
“Customer Data” shall mean all electronic data or information submitted by or on behalf of Customer to, or collected from the Customer Application by, the CivicFeed Services.
“Documentation” shall mean the online documentation for the CivicFeed Services, accessible via http://community.civicfeed.com or http://developers.civicfeed.com.
“End User” shall mean any end user of a Customer Application.
“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Mentions” shall mean the real-time results displaying Third-Party Content from Third-Party Websites as a result of the Alerts. The Mentions requested by Users may temporarily reproduce Third-Party Content which is carried out entirely in the context of the implementation of a technological process. All reproductions of Third-Party Content are necessary for implementing said technological process.
“Order Form” shall mean the ordering document for Customer’s purchases of Services, directly or indirectly from CivicFeed that are executed hereunder from time to time, including any schedules or addenda thereto. An Order Form will set forth Customer’s product and service entitlements, such as Alerts, Mentions, or User Licenses, as applicable.
“Start Date” shall mean the date on which CivicFeed shall make the CivicFeed Services available to Customer as set forth in an applicable Order Form.
“Subscription Term” shall mean the subscription period set forth on an applicable Order Form.
“Third-Party Content(s)” shall mean the third-party content freely accessible in whole or in part from various Third-Party Websites, including but not limited to texts, graphics, news articles, photographs, images, illustrations, video clips, advertising and trademarks, which may be protected by copyright or private rights. The Third-Party Content is displayed by CivicFeed Services upon request of Users under Users’ control.
”Third-Party Website(s)” shall mean the third-party website created and administered by a third-party and making available the Third-Party Content.
“Third-Party Providers” shall mean a third-party provider chosen by Customer whose service, functionality or Third Party Content interoperates with the CivicFeed Services, at Customer’s sole discretion, in connection with Customer’s use of the CivicFeed Services.
“User” shall mean an individual who is authorized by Customer to use the CivicFeed Services. Users may include, for example, employees of Customer or its Affiliates, consultants, contractors and agents of Customer, and third parties with whom Customer transacts business.
“User License(s)” shall mean the number of Users granted access to CivicFeed Services.
2.1 Provision of CivicFeed Services. CivicFeed shall make the CivicFeed Services available to Customer pursuant to this Agreement and all Order Forms during a Subscription Term. Customer’s purchase of the CivicFeed Services is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written public comments made by CivicFeed regarding future functionality or features.
2.2 Customer Affiliates. Customer Affiliates may purchase and use subscriptions to the CivicFeed Services subject to the terms of this Agreement by executing Order Forms hereunder. This Agreement shall apply to such Customer Affiliates, and such Affiliates shall be deemed the “Customer” as contemplated herein. Customer Affiliates may also use the Services purchased by Customer without signing an Order Form if Customer makes certain employees of such Affiliate Users hereunder.
2.3 CivicFeed Responsibilities. CivicFeed shall: (a) ensure that the CivicFeed Services perform in material compliance with the Documentation; (b) use commercially reasonable efforts to make the CivicFeed Services available 24 hours a day, seven days a week, except for: (i) planned downtime (for which CivicFeed shall make commercially reasonable efforts to give at least twenty-four (24) hours’ notice or (ii) any unavailability caused by circumstances beyond CivicFeed’s 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 CivicFeed employees), internet service provider, Third-Party Providers, or hosting facility failures or delays involving hardware, software or power systems not within CivicFeed’s possession or reasonable control, and denial of service attacks; and (c) provide the CivicFeed Services in accordance with applicable laws and governmental regulations when used according to this Agreement.
2.4 Customer Responsibilities. Customer is responsible for all actions taken by Customer or its Users in Customer’s account(s) and for Users’ compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy and legality of all Customer Data; (b) ensure that any user IDs, passwords, and other access credentials for the CivicFeed Services are kept strictly confidential and not shared with any unauthorized person; (c) promptly notify CivicFeed of any breach of security or unauthorized use of its account; (d) use commercially reasonable attempts to comply with requests made by CivicFeed to update various features or functionalities within the CivicFeed Services to optimize performance of the CivicFeed Services to customers generally; (e) use the CivicFeed Services in compliance with this Agreement, applicable Order Form(s) and all applicable local, state, federal and foreign laws in using the CivicFeed Services.
2.5 Use Guidelines. Customer shall use the CivicFeed Services solely for its and its Affiliates’ business purposes as contemplated by this Agreement and shall not: (a) license, sell, resell, lease, transfer, distribute, or otherwise commercially exploit or make the CivicFeed Services available to any third party; (b) interfere with or disrupt the integrity or performance of the CivicFeed Services or the data contained therein; (c) attempt to gain unauthorized access to the CivicFeed Services or its related systems or networks; (d) use the Services to establish an individual’s eligibility for credit, employment or insurance.
2.7 Protection of the Services. Any use of the CivicFeed Services by Customer that, in CivicFeed’s reasonable judgment, imminently threatens the security, stability, integrity or availability of the CivicFeed Services, or otherwise harms CivicFeed, other customers or third parties, may result in immediate suspension of the CivicFeed Services, however CivicFeed will use commercially reasonable efforts under the circumstances to notify Customer in advance of such suspension and provide Customer with an opportunity to correct its usage prior to any such suspension. CivicFeed will have no liability for any such suspension made in good faith. Unless this Agreement has been terminated, CivicFeed will restore Customer’s access to the CivicFeed Services once it verifies that Customer has resolved the condition requiring suspension.
3.1 CivicFeed Services Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on the CivicFeed Services subscription(s) purchased and not actual usage; (ii) payment obligations are non-cancelable; (iii) fees paid are non-refundable, except pursuant to Section 9.3 (Termination for Cause); and (iv) the subscription entitlement(s) purchased cannot be decreased during the relevant Subscription Term.
3.2 Invoicing and Payment. Except as otherwise provided, all fees are quoted and payable in United States dollars. Fees for Services will be invoiced electronically (i) in advance for the CivicFeed Services, and (ii) monthly in arrears for excess usage, if applicable, and in both cases, in accordance with the applicable Order Form. Customer is responsible for maintaining complete and accurate billing and contact information within the CivicFeed Services.
3.3 Overdue Payments. CivicFeed may impose late fees as contemplated in each Order Form. If Customer’s account is 30 days or more overdue, CivicFeed may, in addition to any of its other rights or remedies, upon written notice, suspend Customer’s access to the CivicFeed Services until such amounts are paid in full. If such failure to pay has not been cured within 60 days of the due date, then upon written notice, CivicFeed may terminate this Agreement and any or all outstanding Order Forms in accordance with the Termination for Cause section below.
3.4 Payment Disputes. CivicFeed shall not exercise its rights under the “Overdue Payments” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
3.5 Taxes. Unless otherwise stated, CivicFeed’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use, sales or withholding taxes collected by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on CivicFeed’s net income or property. If CivicFeed has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides CivicFeed with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, CivicFeed reserves all rights, title and interest in and to the CivicFeed Services and Customer retains all rights to the Customer Application(s), including all related intellectual property rights therein and to any improvements, enhancements or updates thereto. No rights are granted to either party hereunder other than as expressly set forth herein. As between CivicFeed and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data.
4.2 Intellectual Property Restrictions. Customer shall not (a) modify, copy or create derivative works based on the CivicFeed Services; (b) reverse engineer the CivicFeed Services; (c) alter, remove or suppress in any manner any copyright, trademark or other notices displayed by the Services; or (d) access the CivicFeed Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the CivicFeed Services.
4.3 Feedback. If Customer elects to provide any suggestions, comments, improvements, ideas or other feedback relating to the CivicFeed Services to CivicFeed (collectively, “Feedback”), Customer acknowledges and agrees that CivicFeed may incorporate into the CivicFeed Services any such Feedback without any obligation, payment, or restriction based on intellectual property rights or otherwise, excluding any Customer Confidential Information contained in the Feedback.
4.4 Marketing Rights. CivicFeed may use Customer’s name verbally to identify Customer as a customer of CivicFeed. With Customer’s consent, CivicFeed may use Customer’s name in writing in any listing of its current customers and in marketing materials, and, so long as CivicFeed complies with any Customer-provided trademark usage guidelines, CivicFeed may use Customer’s logo in its marketing materials to promote the relationship between CivicFeed and Customer. In addition, Customer shall, upon reasonable notice, and at mutually convenient times, participate in customer forums, marketing events or such other branded content in the form of case studies, blog posts, etc. as shall be mutually agreed between the parties.
5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party, or any of its Affiliates (“Disclosing Party”), disclosed to the other party, or any of its Affiliates, (“Receiving Party”) that is marked or designated as “Confidential” and/or “Proprietary”, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, all information and data relating to the provision of the Services, a party’s business and marketing plans, technology and technical information, product designs, and business processes. The terms and conditions of this Agreement are the Confidential Information of both parties, the pricing and other terms reflected in all Order Forms hereunder are the Confidential Information of CivicFeed, and the Customer Data is the Confidential Information of Customer. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer 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 or any third party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
5.2 Confidentiality. 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) (i) to not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents (“Representatives”) who need such access for purposes consistent with this Agreement and who are subject to written confidentiality obligations with the Receiving Party containing protections no less stringent than those contained herein. Receiving Party shall be liable for any breach of this Section 5 by its Representatives. Other than as otherwise provided herein, neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Representatives without the other party’s prior written consent.
5.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) or fails to limit access to any Confidential Information of the Disclosing Party in breach of the confidentiality obligations set forth herein, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
5.5 Survival. The obligation of Confidentiality set forth in this Section 5 shall survive termination or expiration of this Agreement.
6.1 CivicFeed Warranties. CivicFeed represents and warrants that the functionality and overall security of the CivicFeed Services will not be materially decreased during a Subscription Term. In the event of a breach of this Section 6.1, Customer’s exclusive remedy shall be as provided in the “Termination for Cause” section below.
6.2 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, CIVICFEED EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR STATEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY CIVICFEED. CIVICFEED MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY THIRD-PARTY SOFTWARE USED BY CUSTOMER IN CONNECTION WITH THE CIVICFEED SERVICES. CIVICFEED WILL NOT BE LIABLE IN ANY MANNER FOR ANY RESTRICTED INFORMATION RECEIVED FROM OR ON BEHALF OF CUSTOMER IN BREACH OF THIS AGREEMENT.
7.1 Indemnification by CivicFeed. Subject to Section 8 below, CivicFeed shall defend Customer against any claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging (a) that Customer’s use of the CivicFeed Services within the scope of this Agreement infringes the intellectual property rights of such third party; (b) a breach by CivicFeed of its confidentiality obligations under Section 5 hereof; or (c) gross negligence or willful misconduct by CivicFeed, and will indemnify Customer from any damage or judgments finally awarded against Customer incurred in connection with a Claim. If CivicFeed receives information about an infringement claim related to the CivicFeed Services, CivicFeed shall in its discretion and at no cost to Customer (i) modify the CivicFeed Services so that they no longer infringe, without breaching CivicFeed’s warranties under “CivicFeed Warranties” above, (ii) obtain a license for Customer’s continued use of the CivicFeed Services in accordance with this Agreement, or if (i) and (ii) are not reasonably practicable, then (iii) terminate Customer’s subscriptions for the CivicFeed Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. CivicFeed shall have no obligation to indemnify or defend Customer to the extent any Claim arises from Customer’s use of any Third-Party Provider’s services, or Customer’s use of the CivicFeed Services in breach of this Agreement.
7.2 Indemnification by Customer. Subject to Section 8 below, Customer shall defend CivicFeed against any Claims made or brought against CivicFeed by a third party alleging (a) violation of applicable law arising from Customer’s use of the CivicFeed Services in breach of this Agreement; (b) that Customer Data infringes the intellectual property rights of a third party; (c) a breach by Customer of its confidentiality obligations under Section 5 hereof; or (d) gross negligence or willful misconduct by Customer, and will indemnify CivicFeed from any damage or judgments finally awarded against CivicFeed incurred in connection with a Claim.
7.3 Procedure. The party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; provided, that failure to notify shall not relieve a party of its indemnification obligations unless the indemnifying party has been materially prejudiced thereby; (b) give the indemnifying party sole control of the defense and settlement of the Claim (except that the indemnifying party may not settle a Claim unless it unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim.
7.4 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third party claim described in this Section.
8.1 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.
8.2 Exclusion of Indirect Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR COVER DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms entered into hereunder have terminated or expired pursuant to the terms hereof.
9.2 Term of Subscriptions. Subscriptions to the CivicFeed Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Unless otherwise set forth in an Order Form, subscriptions shall automatically renew for additional periods of one year, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. CivicFeed reserves the right to increase the fees on renewal by giving Customer at least sixty (60) days’ notice of such price increase Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
9.3 Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately 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. Upon any termination for cause by Customer, CivicFeed shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to CivicFeed prior to the effective date of termination. Upon any termination for cause by CivicFeed, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term.
9.4 Surviving Provisions. Section 1 and Sections 3 through 10 shall survive any termination or expiration of this Agreement.
10.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
10.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
10.3 Beta Services. From time to time, CivicFeed may invite Customer to try Beta Services. Customer may accept or decline any such trial in its sole discretion. Beta Services are for evaluation purposes and not for production use, are not considered “CivicFeed Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. CivicFeed may discontinue Beta Services at any time in its sole discretion and may never make them generally available. CivicFeed shall have no liability for any harm or damage arising out of or in connection with a Beta Service.
10.4 Export Control and Sanctions Compliance. The CivicFeed Services and derivatives thereof may be subject to export control and sanctions laws of the United States and other applicable government authorities. Customer will comply with, and ensure that its Users are in compliance with such laws, including without limitation, the U.S. Export Administration Regulations and U.S. sanctions (the “Export Control and Sanctions Laws”). Customer will not, directly or indirectly, export, re-export, transship, transfer, divert or otherwise dispose of any CivicFeed products or related technology, or use or allow use of the Services: (i) to or by any individual, entity, or country prohibited by the Export Control and Sanctions Laws, including, without limitation, the prohibition against exports (A) into, or to a national or resident of, any country subject to U.S. sanctions or similar export restrictions (currently, Cuba, Iran, Syria, North Korea and the region of Crimea), or (B) to or by anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List or Entity List, or other export control lists; or (ii) for any purpose prohibited by the Export Control and Sanctions Laws, including, without limitation, nuclear, chemical or biological weapons proliferation or development of missile technology. It is Customer’s sole responsibility to ensure that it and its Users comply with the Export Control and Sanctions Laws with regard to the use of CivicFeed Services. Any use of the Services by Customer or Users that, in CivicFeed’s reasonable judgment, is unlawful may result in immediate suspension of the Services. CivicFeed will have no liability for any such suspension made in good faith.
10.5 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restrictions, it will use reasonable efforts to promptly notify CivicFeed’s Legal Department at email@example.com.
10.6 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email. Legal Notices shall be identified as Legal Notices. Notices to CivicFeed shall be addressed to the attention of its General Counsel. Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
10.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.8 Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
10.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.10 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules. The state and federal courts located in the State of California, Los Angeles City, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
10.11 Entire Agreement. This Agreement is the entire agreement between the parties regarding Customer’s use of the Services, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, and (3) the body of this Agreement. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term or condition of this Agreement.
10.12 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.