MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (the “Agreement”) is entered into by and between DigitalGenius, Inc. (“DigitalGenius”) with offices at 180 Sansome Street, 15th Floor, San Francisco, CA 94104 and Customer. DigitalGenius and Customer are hereby referred to collectively as the “Parties.”
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.1 “Affiliate” shall mean any entity that directly or indirect controls, is controlled by, or is under common control with the Customer entity that enters into an Agreement governed by this Order Form. “Control” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity. Customer Affiliates may purchase the DigitalGenius Service and Professional Services subject to the terms of this Agreement by executing Order Forms or SOWs that incorporate by reference the terms of this Agreement. In each such case, all references in this Agreement to Customer shall be deemed to refer to such Customer Affiliate for purposes of such Order Form or SOW.
1.2 “Confidential Information” shall mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. Confidential Information shall include, without limitation, the terms, conditions and pricing of this Agreement, the Customer Content, and the DigitalGenius Service.
1.3 “Customer Content” will mean the data and content made available to the DigitalGenius Service by or on behalf of Customer.
1.4 “Order Form” shall mean a document signed by both Parties identifying a given type of DigitalGenius Service to be made available to Customer by DigitalGenius pursuant to this Agreement. Each Order Form shall incorporate this Agreement by reference.
1.5 “DigitalGenius Materials” shall mean any materials that DigitalGenius provides to Customer as part of, or in the course of providing, the DigitalGenius Service or the Professional Services. Customer agrees that the DigitalGenius Materials are DigitalGenius’ Confidential Information, as defined in Section 5. Customer shall use the DigitalGenius Materials only as expressly permitted in this Agreement, or the applicable Order Form or Statement of Work.
1.6 “DigitalGenius Service” shall mean the on-line, web-based service ordered by Customer through an Order Form and provided by DigitalGenius under this Agreement, solely to the extent set forth and further described in, and as may be limited by, the Order Forms executed by the Parties, together with its accompanying documentation. The DigitalGenius Service as defined in this Agreement shall not include the Professional Services.
1.7 “Professional Services” means consulting, implementation and technical services provided by DigitalGenius under this Agreement, as described more fully in a Statement of Work.
1.8 “Statement of Work” or “SOW” means a document executed by the parties that describes certain Professional Services purchased by Customer under this Agreement. Each Statement of Work shall incorporate this Agreement by reference.
1.9 “Term” shall mean the term of Customer’s subscription to the DigitalGenius Service specified in the applicable Order Form(s).
1.10 “Users” will mean any individual authorized by Customer to access the DigitalGenius Service subject to the terms of this Agreement. Users may include Customer employees, consultants, representatives and employees, consultants and representatives of Customer Affiliates.
2. CUSTOMER’S USE OF THE SERVICES; OWNERSHIP; DATA PROTECTION.
2.1 Provision of Access. Subject to the terms and conditions contained in this Agreement, DigitalGenius hereby grants to Customer and its Users a limited, non-sublicensable, non-exclusive, non-transferable right to access the features and functions of the applicable DigitalGenius Service ordered pursuant to an Order Form during the Term set forth on that Order Form, solely for Customer’s internal business purposes.
2.2 Usage Restrictions. Customer shall not (a) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the DigitalGenius Service are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (b) allow third parties other than Users to gain access to the DigitalGenius Service; (c) reproduce, modify, translate, or create derivative works of the DigitalGenius Service, or any underlying ideas, technology, or any portion thereof; (d) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the DigitalGenius Service, or any part thereof, or use them for the benefit of any third party; or (e) remove or otherwise alter any proprietary notices or labels from the DigitalGenius Service. The DigitalGenius Service may be subject to export laws and regulations of the United States and other jurisdictions; Customer shall not access or use the DigitalGenius Service in violation of any U.S. embargo or in violation of any U.S. export law or regulation. In addition, Customer and all Users shall not use the DigitalGenius Service to: (i) interfere with or disrupt the integrity or performance of the DigitalGenius Service or the data contained therein or (ii) attempt to gain unauthorized access to the DigitalGenius Service, computer systems or networks related to the DigitalGenius Service. Customer will ensure that its use of the DigitalGenius Service complies with all applicable laws, statutes, regulations or rules.
2.3 Retained Rights; Ownership; Feedback.
2.3.1 Ownership and Use of Customer Content. Subject to the rights expressly granted in this Agreement, Customer owns and retains all right, title and interest in and to the Customer Content. Customer hereby grants to DigitalGenius, solely during the Term, a non-exclusive, non-transferable right and license to copy and use the Customer Content as reasonably required to provide the DigitalGenius Service and related customer support services. In addition, DigitalGenius shall have the right to use Customer Content to improve the DigitalGenius Service and to develop additional offerings, provided such offerings shall not disclose Customer’s identity. The foregoing shall not limit, in any way, DigitalGenius’s confidentiality obligations as set forth in Section 5.
2.3.2 Ownership of the DigitalGenius Service. Subject to the rights expressly granted in this Agreement, DigitalGenius shall own and retain all right, title and interest in and to the DigitalGenius Service, its underlying software, the DigitalGenius Materials, the Professional Services, and all other products, works, and other intellectual property created or provided by DigitalGenius for the purposes of this Agreement, excluding the Customer Content.
2.3.3 Feedback. Customer shall, and hereby does, grant DigitalGenius a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the DigitalGenius Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the DigitalGenius Service or the Professional Services (collectively “Feedback”). Customer shall have no obligation to provide any Feedback.
2.4 Data Protection and Privacy.
2.4.1 Processing of Customer Content. To the extent that DigitalGenius processes Customer Content that include personal data about any living individual (“Personal Data”) in the course of providing the DigitalGenius Service and/or the Professional Services, it will do so only on behalf of Customer and in accordance with the requirements of this Agreement. DigitalGenius will at all times: (i) process the Personal Data only for the purpose of providing the DigitalGenius Service and the Professional Services and in accordance with Customer’s instructions; and (ii) not divulge the whole or any part of the Personal Data to any person, except to the extent necessary for the proper performance of this Agreement or otherwise in accordance with Customer’s instructions.
2.4.2 Safeguards. Customer shall employ appropriate safeguards to limit the personal data made available or accessible to DigitalGenius to only that Personal Data reasonably required in order for Customer to use the DigitalGenius Service and the Professional Services as contemplated by the parties. Customer represents and warrants that it has obtained and/or will obtain all necessary consents to the processing by DigitalGenius of Personal Data for the purposes described in Section 2.4.1 from any living individual whose Personal Data is so processed by DigitalGenius on behalf of Customer.
2.4.3 Technical and Organization Measures. DigitalGenius will have in place and maintain throughout the term of the Agreement appropriate technical and organizational measures to protect the Personal Data against accidental or unlawful destruction or loss, or alteration, or unauthorized disclosure or access, and against all other unlawful forms of processing or any possible loss of control as well as against any risk of any of the foregoing (a “Data Breach”).
2.4.4 Reasonable Assistance. DigitalGenius will provide all assistance reasonably required by Customer to enable Customer to respond to, comply with or otherwise resolve any request, question or complaint received by Customer from (i) any living individual whose Personal Data is processed by DigitalGenius on behalf of Customer or (ii) any applicable data protection authority. In the event that any such request, question or complaint is sent directly to DigitalGenius, except as prohibited by applicable law, DigitalGenius shall promptly notify Customer providing full details of the same.
2.4.5 Data Breach. In the event of a Data Breach, DigitalGenius will promptly notify Customer and do all such commercially reasonable acts necessary in order to remedy or mitigate the effects of the Data Breach and will continuously update Customer of developments relating to the Data Breach. In the event that any Personal Data is lost, damaged or destroyed as a consequence of a Data Breach, DigitalGenius shall promptly restore such Personal Data to the last available backup.
2.4.6 Compliance with Laws. In providing the DigitalGenius Service, DigitalGenius will comply all applicable privacy laws applicable to such provision of the DigitalGenius Service to its customers generally.
3. CUSTOMER RESPONSIBILITIES.
3.1 Obligations. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the DigitalGenius Service, and notify DigitalGenius promptly of any such unauthorized use known to Customer. Customer shall be responsible for the security of all access protocols required in order to access the DigitalGenius Service. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the all Customer Content and for making its own back-ups of the Customer Content. Customer shall be responsible for its Users’ compliance with the terms of this Agreement.
3.2 Marketing. With Customer’s prior approval, DigitalGenius shall have the right to use Customer’s name and logo in marketing materials and on DigitalGenius’ website. Following a successful deployment, and with prior approval, Customer shall participate in a mutually developed case study.
4.1 Fees and Payment. Customer will pay to DigitalGenius, without offset or deduction, all fees in accordance with the relevant Order Form. All fees will be billed and payable in U.S. dollars and are based on rights acquired and not actual usage. Except as otherwise set forth in an Order Form or a SOW, all fees and charges due hereunder will be invoiced in advance and shall be due and payable within thirty (30) days of invoice date. Payment obligations are non-cancelable and all payments made are non-refundable.
4.2 Taxes. Unless otherwise stated, fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on DigitalGenius’s net income or property), even if such amounts are not listed in the Order Form.
5. CONFIDENTIAL INFORMATION.
5.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Notwithstanding any other provision of this Agreement, DigitalGenius’s Confidential Information includes, without limitation, the DigitalGenius Materials, and all methodologies, features and functions embodied in and/or used by the DigitalGenius Service and the Professional Services.
5.2 Mutual Confidentiality Obligations. Each receiving Party shall: (a) use Confidential Information disclosed by the other Party only as permitted by this Agreement; (b) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party by using the same degree of care, but no less than a reasonable degree of care, as the receiving Party uses to protect its own Confidential Information of a like nature against unauthorized dissemination and use; (c) restrict access to the disclosing Party’s Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access for purposes of this Agreement and who are legally bound to protect the confidentiality of the Confidential Information on terms substantially similar to the terms set forth in this Section 5; and (d) to the extent practicable, return or destroy all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.
5.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the receiving Party; (c) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto; (d) is already in the receiving party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (f) is approved for release or disclosure by the disclosing Party without restriction. A disclosure by one Party of Confidential Information of the other Party to the extent required by law shall not be considered a breach of this Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party’s cost, if the other Party wishes to contest the disclosure. In addition, merely identifying Customer as a customer of DigitalGenius to its investors or in a listing of other DigitalGenius customers is not a violation of this Section.
5.4 Remedies. If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of this Section 5, the other Party shall have the right, in addition to any other remedies available, to seek injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies are inadequate.
6. WARRANTIES; DISCLAIMERS
6.1 Warranties. Each Party hereby warrants (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that, to such Party’s knowledge, the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (c) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
6.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DIGITALGENIUS SERVICE, THE PROFESSIONAL SERVICES, THE DIGITALGENIUS MATERIALS AND ANY RELATED DOCUMENTATION ARE PROVIDED “AS IS,” AND DigitalGenius DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. DIGITALGENIUS DOES NOT WARRANT THAT THE DIGITALGENIUS SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE DIGITALGENIUS SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. THE DIGITALGENIUS SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DIGITALGENIUS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
7. LIMITATIONS OF LIABILITY
EXCEPT WITH RESPECT TO CUSTOMER’S BREACH OF THE RESTRICTIONS SET FORTH IN SECTION 2.2, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCEPT WITH RESPECT TO CUSTOMER’S BREACH OF THE RESTRICTIONS SET FORTH IN SECTION 2.2 OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 8, THE CUMULATIVE LIABILITY OF EACH PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION ARISING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO DIGITALGENIUS BY CUSTOMER UNDER SECTION 4 DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.1 Indemnification by DigitalGenius. DigitalGenius agrees to defend at its expense Customer from and against any third party claims, demands, suits or proceedings (“Claims”) alleging that the DigitalGenius Service directly infringes a U.S. patent, copyright or misappropriates such third party’s trade secrets, and to indemnify and hold Customer harmless against all losses, liabilities, costs (including reasonable attorneys’ fees) or damages finally awarded to such third party pursuant to such Claims, or agreed to in a written settlement agreement signed by DigitalGenius; provided that Customer promptly notifies DigitalGenius in writing of the Claim, reasonably cooperates with DigitalGenius, and allows DigitalGenius sole authority to control the defense and settlement of such Claim. If such a Claim is made or appears possible, Customer agrees to permit DigitalGenius, at DigitalGenius’s sole discretion, to obtain a license to permit Customer to continue to use the DigitalGenius Service, or to modify or replace any allegedly infringing material to make it non-infringing. If DigitalGenius determines that none of these alternatives is reasonably available, DigitalGenius may terminate the Agreement as to the allegedly infringing material and Customer shall, upon written request from DigitalGenius, cease use of, and, if applicable, return, such materials as are the subject of the Claim. This Section 8.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the DigitalGenius Service by Customer; or (ii) combination, operation or use of the DigitalGenius Service with other software, hardware, data or technology not provided by DigitalGenius, or with Customer Content. This Section 8.1 sets forth DigitalGenius’s entire liability and Customer’s exclusive remedies in the event of any claim of infringement or misappropriation.
8.2 Indemnification by Customer. Customer agrees to defend at its expense DigitalGenius from and against any Claims arising from or related to the Customer Content (including any violation of law by Customer in providing such Customer Content to DigitalGenius) and to indemnify and hold DigitalGenius harmless against all losses, liabilities, costs (including reasonable attorneys’ fees) or damages finally awarded to such third party pursuant to such Claims, or agreed to in a written settlement agreement signed by Customer; provided that DigitalGenius promptly notifies Customer in writing of the Claim, reasonably cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such Claim. Notwithstanding the foregoing, Customer will not settle any such third-party claim against DigitalGenius unless DigitalGenius consents to such settlement, and further provided that DigitalGenius will have the right, at its option and expense, to defend itself against any such Claim or to participate in the defense thereof by counsel of its own choice.
9. TERM AND TERMINATION.
9.1 Term. The term of this Agreement will commence on the Effective Date and will continue until expiration or termination of the Term(s) set forth in all Order Forms hereunder.
9.2 Termination. Either Party may, at its option, terminate this Agreement, an Order Form or a SOW in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
9.3 Effect of Termination. Upon any termination of this Agreement, Customer will (a) immediately discontinue all use of the DigitalGenius Service, the Professional Services and any DigitalGenius Confidential Information (including any DigitalGenius Materials); and (b) promptly pay to DigitalGenius all amounts due and payable under this Agreement.
9.4 Survival. The provisions of Sections 2.2-2.4, 3, 4, 5, 6.2, 7, 8, 9.3, 9.4 and 10 will survive the expiration or termination of this Agreement.
9.5 Suspension of DigitalGenius Service. If Customer fails to pay undisputed amounts in accordance with the terms and conditions hereof and the applicable Order Form, following ten (10) business days notice and opportunity to cure, DigitalGenius shall have the right, in addition to any of its other rights or remedies, to suspend the DigitalGenius Service to Customer, without liability to Customer, until such amounts are paid in full.
10.1 Entire Agreement. This Agreement, together with all Order Forms and SOWs hereunder, sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and, supersedes and merges all prior and contemporaneous oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement and such Order Forms and SOWs. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form or Statement of Work, the terms of such exhibit, addendum, Order Form or Statement of Work shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms or SOWs) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
10.2 Independent Contractors. In making and performing this Agreement, Customer and DigitalGenius act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.
10.3.1 Notices to General Customer Base. For notices that are directed to Customer as part of DigitalGenius’ general customer base, DigitalGenius may give notice by means of a general notice on the DigitalGenius Service, or by electronic mail to Customer’s e-mail address on record. Notice on the DigitalGenius Service shall be deemed to have been given upon the expiration of 48 hours after posting.
10.3.2 Notices Specific to the Parties. All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight courier or certified mail, postage prepaid, to the Parties at their respective addresses set forth in the preamble to this Agreement, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by email, provided that the sender receives and retains confirmation of successful transmittal to the recipient. In the event that either Party delivers any notice by means of email in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
10.4 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
10.5 Assignment. Neither party shall assign this Agreement, in whole or in part, without the express, prior written consent of the other Party, (which consent shall not be unreasonably withheld), and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. Notwithstanding the foregoing, either Party may freely assign this Agreement in its entirety (including all Order Forms), upon notice and without the consent of the other Party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
10.6 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
10.7 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
10.8 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.
10.9 Governing Law, Venue, Attorneys’ Fees. This Agreement shall be governed and controlled in accordance with the laws of the State of California, without regard to conflicts of law principles that would apply the laws of any other jurisdiction. The United Nations Convention on the International Sale of Goods does not apply to this Agreement. The state and federal courts located in San Francisco County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts and waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar doctrine. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action to enforce this Agreement the prevailing party will be entitled to recover its costs and attorneys’ fees.
10.10 U.S. Government End-Users. The DigitalGenius Service is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the DigitalGenius Service with only those rights set forth therein.
10.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. A facsimile, PDF or any other type of copy of an executed version of this Agreement signed by a Party is binding upon the signing Party to the same extent as the original of the signed Agreement.
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