This Master Services Agreement in conjunction with your fully executed Order Form jointly govern your purchase of a license to and use of the Improvado platform and services. The parties agree as follows:
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND YOUR AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
1.1 "Affiliate" means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where "control" means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
1.2 "Authorized User" means a user who is authorized by Customer to use or access the Services who has been supplied a unique username and password by Improvado.
1.3 "Documentation" means Improvado documentation, in all forms, relating to the Services (e.g., user manuals, on-line help files, etc.) as it may be made available by Improvado to Customer from time to time.
1.4 "Professional Services" means the professional services specified in the applicable Statement of Work issued pursuant to the terms of this Agreement, including but not limited to implementation services, consulting, and training services.
1.5 "Services" means the subscription services identified in the Sales Order.
1.6"Subscriber Data" means any data uploaded into the Services, or otherwise provided for processing by the Services, by Customer or Customer Affiliates in accordance with this Agreement.
1.7 "Subscription Fees" means the fees for the Services specified in the Sales Order.
1.8 "Technical Support Services" means the Service Level commitment by Improvado based on the subscribed tier identified in the Sales Order
2.1 Use of the Services. Subject to the terms and conditions of this Agreement, Improvado grants to Customer and Customer Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement) right during the term of this Agreement to use the Services purchased by Customer. Customer is solely responsible for Customer’s conduct (including by and among all Authorized Users), the content of Subscriber Data, and all communications with others while using the Services. Improvado is not responsible for the availability, accuracy, appropriateness, or legality of Subscriber Data or any other information that Customer may upload to the Services from time to time.
2.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Improvado grants to Customer and Customer Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement) right during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with the use of the Services in accordance with this Agreement.
2.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize Customer Affiliates, Authorized User or any third parties to: (a) modify, enhance, or create a derivative work of the Services or Documentation; (b) transfer, distribute, assign, sublicense, rent, lease, time share or sell the Services or Documentation; (c) circumvent or disable any security or other technological features or measures of the Services, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (d) knowingly upload or provide for processing any information or material that is illegal, defamatory, abusive, obscene, or that violates privacy or intellectual property rights of any third party; (e) use the Services to knowingly harm, threaten, or harass another person or organization; or (f) decompile, disassemble, reverse compile, reverse engineer or otherwise attempt to reconstruct the source code for the Services. Customer will neither alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Documentation and will include all such notices on any copies. Customer will use reasonable efforts to ensure that Authorized Users comply with this Agreement. Customer will be directly and fully responsible to Improvado for the conduct and any breach of this Agreement by the Authorized Users.
2.4 Authorized Users Only. This Agreement restricts the use of the Services to Authorized Users, up to the number of Authorized Users specified in the Sales Order. An Authorized User account must not be shared among users. Additional Authorized Users may be added by the written mutual agreement of the Parties at the rates specified in the Sales Order. As part of the registration process, Customer may be asked to identify of Customer and other Authorized Users who should be associated with Customer’s account. Customer will not intentionally misrepresent the identity or nature of the company or Authorized Users who should be associated with the Customer account. Customer is responsible for maintaining the confidentiality of any login, password, and account information.
2.5 Protection against Unauthorized Use. Customer will, and will ensure that Customer Affiliates and Authorized Users use reasonable efforts to prevent any unauthorized use of the Services and Documentation, and Customer will promptly notify Improvado in writing of any unauthorized use of which Customer becomes aware. If there is unauthorized use by anyone who obtained access to the Services or Documentation directly or indirectly through Customer, Customer Affiliate, or an Authorized User, Customer will take reasonably necessary steps to terminate the unauthorized use.
2.6 Reservation of Rights. Improvado retains all right, title, and interest in and to the Services and Documentation, including any improvements and derivatives thereof developed by or on behalf of Improvado. If and to the extent that Customer, either independently or jointly with Improvado, will develop any improvements or derivatives of the Services in connection with and directly arising out of Customer’s use of the Services, the Parties will mutually agree on the ownership of such improvements and derivatives in a separate document (such as a SoW).
2.7 Services Availability. Improvado performs and maintains regular database backups according to the retention policy appropriate for the particular system. Improvado incorporates database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements that also help improve query performance. Improvado has implemented and will maintain commercially reasonable measures intended to avoid unplanned Services interruptions. Improvado will use commercially reasonable efforts to notify Customer in advance of planned Services interruptions. In the event of an unplanned Services interruption, Customer may contact Improvado for Technical Support Services, as described in this Agreement.
3.1 Professional Services. Customer may contract with Improvado for Improvado to perform Professional Services. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the scope, duration and other relevant details for each project will be described in the relevant SoW. Any changes to the Professional Services set forth in a SoW will be by the written mutual agreement of the Parties.
3.2 Feedback and Other Content. The Services may ask Customer, Customer Affiliates, or Authorized Users to submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of the Services (any of the above, “Feedback”). Customer is under no obligation to provide any Feedback. To the extent that Customer provides any Feedback, Customer grants Improvado a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit Feedback without restriction.
4.1 Fees and Payment Terms. Unless otherwise specified in the Sales Order, the Subscription Fees for the initial subscription term and Professional Services fees set forth in the SoW are due upon execution of the Sales Order. Fees for additional Services quantities and Professional Services will be invoiced at the time of order, unless otherwise agreed in writing by both parties. Subject to specific Sales Order terms, fees will be paid by Customer upfront and on receipt from the date the invoice is received. Unless expressly provided otherwise in a Sales Order, all amounts payable under this Agreement are denominated in United States Dollars, and Customer will pay all such amounts in United States Dollars.
4.2 Late Payment. Any amount not paid when due will be subject to finance charges calculated on the basis of 1.5% of the unpaid balance per month from the date an invoice is received.
4.3 Taxes. The fees stated in a Sales Order and/or a SoW do not include local, state, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement ("Taxes"). Customer is responsible for paying all applicable Taxes incurred as a result of Customer’s purchase of the Services and invoiced to Customer, excluding Taxes which are based on Improvado’s operation of its business including but not limited to net income or property taxes.
4.4 Fee Adjustment. Improvado reserves the right to increase the annual Subscription Fees by at a minimum five percent (5%) annually. Any such adjustment shall be based on changes in the cost of providing the Services, inflation, or other factors that impact the cost of providing the Services. Improvado shall provide Customer with written notice of any fee adjustment at least thirty (30) days prior to the effective date of the adjustment.
4.5 Circumvention of Non-Renewal Clause. If Customer provides written notice to Improvado its intention of non-renewal pursuant to Section 5.1, and within one hundred and eighty (180) days of such notice the Customer engages Improvado for any Services Improvado rendered under the latest Order, the monthly rate for any new Services shall be higher of (i) the then current rates for the Services or (ii) 1.5 times the Customer’s Monthly Recurring Revenue (MRR) generated in connection with the Services rendered under the latest Order.
4.6 Credit Card Payments. Regardless of whether Customer chooses to use a credit card as the payment method, Customer shall be responsible for all fees incurred by the credit card payment. These charges shall not be included in the Order and shall be included in the invoice as a separate line item.
5.1 Term; Cancellation of Renewal. This Agreement commences on the effective date specified in the Sales Order and continues for the term specified therein. If the Sales Order has an automatic renewal clause, either Party may terminate this Agreement by providing written notice to the other Party of its intent not to renew at least sixty (60) days prior to the expiration of the current term.
5.2 Termination for Material Breach. Either Party may terminate this Agreement if the other Party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching Party. A breach of this Agreement by an Authorized User will be treated as a breach by Customer. Termination in accordance with this Subsection will take effect when the breaching Party receives written notice of termination from the non- breaching Party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period.
5.3 Post-Termination Obligations. If this Agreement is terminated for any reason, unless otherwise expressly agreed between the Parties in a Sales Order with respect to post-termination services: (a) Improvado shall have no obligation to continue to provide or perform any Services, Professional Services, or Technical Support Services after the effective date of the termination; (b) Customer will promptly pay Improvado any Subscription Fees, Professional Services Fees, and other amounts that have accrued prior to the effective date of the termination and are properly due in accordance with the terms of this Agreement; (c) any and all liabilities accrued prior to the effective date of the termination will survive; (d) all use of the Services and Documentation will be discontinued by Customer, Affiliates, and Authorized Users; and (e) Sections and Subsections 1, 2, 3.2, 4.2, 4.3, 4.5, 5.3, 6, 7, 8.3, 9, 10, 11, and 13 shall survive termination. If this Agreement is terminated by Improvado pursuant to Subsection 5.2 or by Customer other than pursuant to Subsection 5.2, Customer will pay to Improvado the amounts due under the applicable Sales Order for the remainder of the then-current term. If Customer terminates this Agreement for Improvado’s uncured material breach, Improvado will promptly provide Customer a pro-rata refund of all prepaid but unused Subscription Fees for the remainder of the then-current term.
6.1 Definition. "Confidential Information" means non-public business information, know- how, and trade secrets in any form, including information regarding Improvado product plans, Beta Versions, terms of this Agreement, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its Affiliates (the “Disclosing Party”) to the other party or its Affiliates (the “Receiving Party”), directly or indirectly, in writing, orally, or by inspection of tangible objects, where such information is disclosed after the Effective Date specified on the Sales Order. Confidential Information includes this Agreement and its terms. "Confidential Information" excludes information that (a) is publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party through no action or inaction of the Receiving Party; (b) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s files and records; (c) is obtained by the Receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (d) is independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession.
6.2 Maintenance of Confidentiality. The Receiving Party agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Disclosing Party’s Confidential Information to third parties without the prior written consent of the Disclosing Party. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s employees or agents who reasonably need to have access to such information to perform the Receiving Party’s obligations under this Agreement and who are bound by confidentiality and restricted use obligations at least as protective of Disclosing Party’s Confidential Information as set forth in this Section 6. Additionally, either Party may disclose this Agreement to actual and potential investors and funding sources and their representatives, in each case bound by confidentiality and restricted use obligations at least as protective of Disclosing Party’s Confidential Information as set forth in this Section 6. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law so long as the Receiving Party gives the Disclosing Party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the Disclosing Party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure.
6.3 Return of Materials and Effect of Termination. Upon written request of the Disclosing Party, or in any event upon any termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy all materials, in any medium, to the extent containing or reflecting any of the Disclosing Party’s Confidential Information. Following expiration or termination of this Agreement, Improvado may purge Subscriber Data and Customer’s service environment from Improvado’s systems. The obligations in this Section 6 survive for three years following expiration or termination of this Agreement, except that Confidential Information that constitutes a trade secret of the Disclosing Party will continue to be subject to the terms of this Section 6 for as long as such information remains a trade secret under applicable law.
7.1 Data Security. Improvado implements and maintains physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of Subscriber Data. These measures include encryption of Subscriber Data during transmission to the Services, and encryption of backups of Subscriber Data and authentication credentials at rest. Improvado will notify Customer of any unauthorized access to, or use of, Subscriber Data of which it becomes aware. If Improvado becomes aware of any unauthorized disclosure of Subscriber Data resulting from Customer’s use of the Services, Improvado will work with Customer to investigate the cause of such unauthorized disclosure and will work together in good faith to take the steps reasonably necessary to prevent any future recurrence and to comply with applicable data breach notification laws.
7.2 Data Transmission. Customer acknowledges that the use of the Services involves transmission of Subscriber Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties. Customer must protect Customer’s Authorized User login names and passwords from access or use by unauthorized parties and is solely responsible for any failure to do so. Customer must promptly notify Improvado of any suspected security breach at support@Improvado.
7.3 Subscriber Data. As between the Parties, Customer or its licensors retain all rights, title, and interest (including all known and unknown intellectual property rights) to the Subscriber Data. Customer grants Improvado a non-exclusive, worldwide, royalty-free license to use, copy, transmit, index, store, aggregate, and display Subscriber Data solely as required to provide or perform the Services, Technical Support Services, account management services, and Professional Services.
Improvado may aggregate the metadata and usage data of Customer collected or made available through the Services in a de-identified, aggregated manner solely for its own internal statistical analysis, for the purpose of improving Improvado products and services, and for the purpose of developing, displaying, and distributing benchmarks and similar reports for Improvado’s internal use, provided that any such data is not publicly identified or identifiable as originating with or associated with Customer or any individual person. Under no circumstances will Improvado sell the Subscriber Data.
8.1 Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery and performance of this Agreement.
8.2 Improvado Warranties. Improvado warrants that the Services as delivered to Customer will materially conform to the specifications set forth in the applicable Sales Order and the Documentation, during the term of the Sales Order. Customer must notify Improvado of a claim under this warranty within 30 days of the date on which the condition giving rise to the claim is first recognized by the Customer. Improvado further warrants that it will perform Professional Services in a professional and workmanlike manner in accordance with the SoW and the Documentation, if applicable. To the extent permitted by law, Customer’s sole and exclusive remedy arising out of or in connection with a breach of warranty is limited to correction of the non-conforming Services or re-performance of the Professional Services, as applicable, or if correction or re-performance is not commercially reasonable as warranted within thirty (30) days, termination of the applicable Sales Order or SoW, as applicable and a refund of any prepaid unused fees for the applicable Services or Professional Services.
8.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. IMPROVADO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. IMPROVADO DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE OR DOCUMENTATION. EXCEPT AS SET FORTH IN SECTION 8.2, IMPROVADO DOES NOT WARRANT THAT THE SERVICE OR DOCUMENTATION IS ERROR-FREE. THE PARTIES AGREE THAT IMPROVADO SHALL NOT BE LIABLE FOR ANY COSTS, DAMAGES OR LIABILITIES CAUSED BY ANY ERRORS IN CONNECTION WITH THE SERVICES.
9.1 Defense of Infringement Claims. Improvado will, at its own expense, defend Customer from and against any claim, proceeding, or suit brought by a third party ("Claim") alleging that the Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property rights, and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer, or agreed in settlement by Improvado (including reasonable attorney’s fees) resulting from such Claim.
9.2 Indemnification Procedure. Customer must (a) give Improvado prompt written notice of the Claim; (b) grant Improvado full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as Improvado may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Customer will not defend or settle any Claim under this Subsection 9.2 without Improvado’s prior written consent. Customer may participate in the defense of the Claim at Customer’s own expense and with the counsel of Customer’s own choosing, subject to Improvado’s sole control over the defense and settlement of the Claim as provided above.
9.3 Exclusions from Obligations. Improvado shall have no obligation under this Section 9 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) unauthorized use of the Services in combination with other products or services; (b) use of the Services by Customer, Customer Affiliate or any Authorized User outside the scope of the rights granted in this Agreement; (c) any modification of the Services not made or authorized in writing by Improvado.
9.4 Infringement Remedies. In the defense or settlement of any infringement Claim, Improvado may, at Improvado’s sole option and expense: (a) procure for Customer a license to continue using the Services; (b) replace or modify the allegedly infringing technology to avoid the infringement; or (c) if the foregoing are not commercially feasible in Improvado’s sole judgment, then terminate Customer’s license and access to the Services and refund any prepaid, unused Services fees as of the date of termination. This Section 9 states Improvado’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property rights by the Services.
Customer will defend Improvado against any claim by a third party arising from or relating to the Subscriber Data or any product of service offered by Customer in connection with or related to the Services and will indemnify and hold harmless Improvado from and against any damages and costs awarded against Improvado or agreed in settlement by Customer resulting from such claim. This Section 10 states Customer’s sole and exclusive liability, and Improvado’s sole and exclusive remedy, for any indemnification obligation owed by Customer to Improvado.
11.1 Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY LAW AND EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY NOR ITS AFFILIATES WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
11.2 Cap on Liability. TO THE EXTENT PERMITTED BY LAW AND EXCEPT FOR EXCLUDED CLAIMS, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S OR A PARTY’S AFFILIATES’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE MAXIMUM LIABILITY OF EITHER PARTY UNDER THE TERMS OF THIS AGREEMENT FOR A BREACH OF A PARTY’S INDEMNITY OBLIGATIONS OR FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY SHALL BE LIMITED TO THE AGGREGATE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
12.1 Third-Party Products. Any third-party product that Improvado provides as identified in an applicable Sales Order or that is made available in connection with the Services is provided pursuant to the terms of the applicable third-party agreement, and Customer’s use of any such third-party product constitutes Customer’s agreement to comply with the terms of the applicable third-party agreement. Improvado assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third-party product.
12.2 Non-Improvado Apps. "Non-Improvado App" means a software application developed by a third party or by Customer that interoperates with the Services. If Customer installs or enables a Non-Improvado App for use with the Services, Customer grants Improvado permission to allow the provider of that Non-Improvado App to access Subscriber Data as required for the interoperation of that Non-Improvado App with the Services. The interoperation of a Non-Improvado App with the Services and the sharing of Subscriber Data with the Non-Improvado App will not be a breach of the confidentiality of Customer, unless the disclosure of such Subscriber Data exceeds the Customer’s requested use case.
13.1 Access by Competitors. Customer may not access the Services to build a competitive product. In addition, Customer may not access the Services for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose.
13.2 Anti-Corruption. Improvado represents and warrants that is has not offered Customer any illegal or improper bribe, kickback, payment, gift, or thing of value in connection with this Agreement. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Improvado’s at support@Improvado.
13.3 Relationship. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
13.4 Publicity. Customer hereby agrees that Improvado may reference the name and logo of Customer as a customer on Improvado’s website and other marketing materials. Neither Party may issue press releases relating to this Agreement without the other Party’s prior written consent.
13.5 Assignment and Delegation. 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). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Sales Orders and Statements of Work), without the 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.
13.6 Subcontractors. Improvado may use subcontractors in carrying out Professional Services under this Agreement and any Sales Order. Improvado remains responsible for all of its obligations under this Agreement and will ensure that all Improvado subcontractors are aware of the terms of this Agreement and have an agreement in place between Improvado and such subcontractor with terms substantially similar to those set forth herein.
13.7 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by email to firstname.lastname@example.org to the appropriate party at the address set forth in the Sales Order and with the appropriate postage affixed, and, if to Customer, to the attention of [ ] via email at [EMAIL]. Either party may change its address for receipt of notice by notice to the other party in accordance with this Subsection. Notices are deemed given two business days following the date of emailing.
13.8 Force Majeure. Neither Party will be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
13.9 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
13.10 Arbitration. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any action arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, will be determined by binding arbitration in Santa Clara County, California, U.S.A. by one arbitrator. The arbitration will be administered by the AAA pursuant to its Comprehensive Arbitration Rules and Procedure. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The prevailing Party will be entitled to receive from the other Party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to prepare for or conduct the arbitration hearing on the merits.
13.11 No Third-Party Beneficiaries. There are no intended third-party beneficiaries to this Agreement, other than Customer Affiliates who have executed Sales Orders with Improvado.
13.12 Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the Party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the Party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.
13.13 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Services will immediately terminate.
13.14 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
13.15 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Agreement may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect of an original.
13.16 Entire Agreement. This Agreement and the exhibits, incorporated by reference hereto, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.