1.1 “Account(s)” means an account generated for the Customer to use the Subscription for the Purpose and manage its Permitted Users’ accounts during the Subscription Term. For the avoidance of doubt, an Account is specific to the Customer and under no circumstance may an Account be shared with any third-party.
1.2 “Custom Integration” shall mean the service provided by Company whereby the Software is integrated with a third-party tool as mutually agreed between the Parties and at Fees as set out in the Order Form.
1.3 “Enhancements” shall mean any modification, update, upgrade, or addition to the Software that, when made or added to the modules currently being used by the Customer, provides minor functionality enhancements, but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Company to all its customers as a part of their subscription to the Software.
1.4 “Error” shall mean any verifiable and reproducible failure or inability of the Software to perform any material functions set forth in the Agreement due to any programming defect in the Software when used by the Customer as specified under this Agreement.
1.5 “Fees” shall mean the fees payable by the Customer to the Company as set forth in the applicable Order Form.
1.6 “Fixes” shall mean any modification or addition to the Software that, when made or added to the solution or modules currently being used by the Customer, corrects Errors but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by the Company to all its customers as a part of their Subscription.
1.7 “Licensable Activity” shall mean any activity encompassed by any intellectual property rights and in the absence of a license, would give rise to liability for infringement (or inducement of infringement or contributory infringement) of such intellectual property rights.
1.8 “Order Form” means a written order, in the form set forth in the Agreement, that the Parties may enter into from time to time under this Agreement.
1.9 “Permitted User(s)” shall mean any employee or consultant of the Customer who is permitted to access and use the Subscription.
1.10 “Software” shall mean a proprietary Software of Company known as “Peoplebox” including its Enhancements (if any).
1.11 “Services” shall mean services provided by the Company including without limitation implementation services, OKR coaching services and Custom Integration services.
1.12 “Subscription” shall mean the access to Software pursuant to an Order Form, under which the Software hosted by Company on cloud is made available for use to the Customer together with support services as per Company’s standard policies.
1.13 “Customer Data” means all data and materials uploaded by the Customer and /or its Permitted Users on the Software as part of the Subscription of Services.
2. GRANT OF SUBSCRIPTION
2.1 Upon the payment of Fees by the Customer and subject to terms and conditions of the Agreement, Company grants to the Customer during the Subscription Term, a fixed-term, non-exclusive, worldwide, non-transferable, revocable, non-sublicensable, and limited license to use the Subscription for Customer and its Permitted User’s internal business use (“Purpose”). Nothing herein contained shall be construed as granting to the Customer any intellectual property right, including copyrights, regarding the Software and Subscription except as expressly provided for hereunder.
3.1 Software Restrictions. Customer will not, directly, or indirectly and will ensure that its Permitted Users do not:
(i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software or Subscription;
(ii) copy, modify, adapt, translate, or create derivative works or otherwise make any changes to Software;
(iii) use the Software or Subscription or portion thereof in violation of any applicable export control laws or regulations;
(iv) use the Subscription to develop, market or sale any competing or similar product;
(v) engage in any Licensable Activity;
(vi) use any of the Software’s components, add-ons, files, modules, externals, contents including associated subscription material separately from the Software;
(vii) the Customer shall not use or permit the use of any software, hardware, application, or process that (A) interferes with the Software, (B) interferes with or disrupts servers, systems, or networks connected to the Software, or (C) accesses or attempts to access another customer’s accounts, servers, systems, or networks without authorization, or (D) harasses or interferes with another subscriber’s use and enjoyment of the Software, or (v) tamper with or breach the security of the Software;
(viii) use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party;
(ix) use the Subscription for any other purpose than the Purpose;
(x) modify, remove, or obstruct any proprietary notices or labels. itself or allow its Permitted Users to remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Software or add any other markings or notices to the Software.
All rights not specifically and unequivocally granted to the Customer are reserved by the Company.
4. CUSTOMER’S RESPONSIBILITIES
4.1 Account Management. The Customer shall have administrative rights to manage the Accounts of its Permitted User(s), at its discretion. Solely the Customer shall be responsible for managing its Account and accounts of any of its Permitted User(s) and updating the same from time to time. As a condition for using the Subscription, the Customer and the Permitted Users shall be required to register with the Company by entering their respective email addresses. The Customer shall ensure that the Permitted Users shall provide the Company with accurate, complete, and updated registration information. The Customer understands that failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Permitted User’s account. The Customer and Permitted Users shall be responsible for maintaining the confidentiality of its Account and the Permitted User’s accounts. The Account or any accounts are non-transferable. The Company shall not be liable for any loss of data or functionality caused directly or indirectly by the Permitted Users or any third party.
4.2 Compliance with Laws.
(i) Export Control. The Customer may not remove or export from the United States or allow the export or re-export of the Services, Software, Subscription or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
(ii) Federal Government End Use Provisions. If the Subscription or Services are being or have been acquired with U.S. Federal Government funds, or Customer is an agency, department, or other entity of the United States Government, as defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
(iii) Additional Obligation. Customer represents, covenants, and warrants that Customer will use the Subscription only in compliance with all applicable laws, rules and regulations. The Customer acknowledges that the Company exercises no control over the Customer Data through the Software or usage of the Subscription. The Customer shall not upload, post, reproduce or distribute any information or other material protected by copyright, privacy rights, or any other intellectual property right as Customer Data without first obtaining the permission of the owner of such rights.
4.3 Customer System Compatibility. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Subscription, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and any other equipment that the Customer may require in case of any Enhancements to the Software.
4.4 Unauthorized Use; False Information. The Customer shall: (i) notify the Company immediately of any unauthorized use of its Account, Permitted User’s account or any other known or suspected breach of security, (ii) use reasonable efforts to stop such unauthorized use or security breach and (iii) not provide false identity information to gain access to the Software or use the Subscription.
4.5 Access. The Customer shall be solely liable for the usage of the Software by all Permitted Users. The Customer shall ensure that the Permitted Users adhere to the terms of this Agreement. The Customer understands that the Company reserves its right to refuse or terminate any Permitted Users’ account in case of any Permitted Users’ breach of this Agreement. The Customer agrees to indemnify, defend and hold harmless the Company and its respective officers, demands, directors, employees and agents against any claim, demand, allegations, losses or settlements arising out of or in connection with the usage of Permitted Users including any acts, inactions, omissions, misconduct or negligence.
4.6 Customer Data. The Customer is solely responsible for all the Customer Data transmitted on the Software, and for ensuring that the Customer Data does not: (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive, or malicious or (iii) include profanity, hate speech or other language that is inconsistent with generally accepted standards of decency or (iv) constitute a breach of any contractual obligation that Company may have with a third party or (v) introduce any software viruses or other harmful or deleterious computer code, files, or programs, such as trojan horses, worms, time bombs, or cancelbots or (vi) violate or encourage violation of any applicable laws, rules or regulations. The Customer hereby acknowledges and agrees that The Company shall, at all times, possess the right to refuse to include and/or to cause the removal of any or all the Customer Data for any reason at the Company’s sole discretion.
4.7 Usage and Configuration Metrics and Analytics. The Company, and its third-party service providers that perform services in connection with the Subscription may collect information regarding number of Permitted Users, number of devices, number of servers, per user storage capacity, aggregate storage usage of the Customer and may use such information only for the Company’s internal business purposes, including to perform its obligations under this Agreement and to ensure compliance with this Agreement.
4.8 DPA. If any European or any United Kingdom personal data is made available by the Customer and/ or Permitted Users as part of the Subscription, the Services or Customer Data, the terms of the data processing addendum available at [please insert link] (“DPA”) will be binding on the parties.
5.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical and marketing information, business plans, methods, processes, inventions, techniques, designs, data, know-how, ideas, concepts, strategies, trade secrets or financial information or any other information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Company includes non-public information regarding features, functionality and performance of the Software, Subscription, Services, Custom Integration or any other services. Confidential Information of Customer includes Customer Data.
5.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public,(ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
5.3 Protection of Confidential Information. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.
5.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure
5.5 Injunctive Relief. The Receiving Party agrees that any violation of the confidentiality obligations will cause irreparable injury to the Disclosing Party, entitling Disclosing Party to obtain injunctive relief in addition to all legal remedies.
5.6 Private Data Confidentiality. The Permitted Users may share individual data including feedbacks, information or material with a degree of privacy and/ or anonymity as part of the Subscription (“Private Data”), in which case, the Company may provide Permitted Users with a Confidentiality Notice for the same. The ownership, rights, title, and interest in the Private Data will vest with the Company and the Company will not be liable to share such Private Data with the Customer. The Customer acknowledges and agrees that by using the Subscription or Services: (i) the Customer’s right to possess Private Data is subject to the terms of any relevant Confidentiality Notice provided to Permitted Users by the Company; and (ii) the Company’s ability to show or transfer the Private Data to the Customer is subject to the terms of any relevant Confidentiality Notice provided to Permitted Users by the Company. For sake of this Section 5.6, “Confidentiality Notice” shall mean the notice provided by the Company, as updated from time to time, to Permitted Users at the time of using the Subscription which is maintained with degree of confidentiality and anonymity by the Company as per its policies.
5.7 Confidentiality Term. The confidentiality obligations set forth in this Section 5 (Confidentiality) shall survive for a period of five (5) years from the date of expiration or termination of this Agreement.
6. PROPRIETARY RIGHTS
6.1 Customer Data. Save and except as stated in Clause 5.6 of this Agreement, Customer owns all rights, title and interest in and to the Customer Data. Customer grants to Company an exclusive, non-transferable, worldwide, and royalty-free license to use and exploit Customer Data for internal business purposes of the Company.
6.2 Feedback. From time to time, the Customer and/or its Permitted Users may provide feedback, suggestions, requirements or recommendations (“Feedback“) regarding the Software the Subscription. The Customer hereby assigns to the Company all right, title and interest into such Feedback and an exclusive right to create any developments based on such Feedback.
6.3 Intellectual Property. Company shall own and retain all right, title and interest in and to (a) the Subscription, Services, Custom Integrations and Software, (b) all improvements, Enhancements, new versions or modifications thereto, (c) any software, applications, inventions or other technology developed in connection with Implementation Services or support services, and (d) all intellectual property rights related to any of the foregoing.
6.4 Reports. The Customer acknowledges and agrees the Software may generate certain reports (the “Reports“) with the use of the Customer Data. All intellectual property rights including the ownership rights in all such Reports generated through the Software, the trademarks, logos, trade dress and service marks in the same shall vest solely with the Company or its licensors (as the case maybe) and shall be used by the Customer solely for the Purpose. The Reports may not be used, modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part.
6.5 Third Party tools. In case the Customer avails any Custom Integration, the Customer agrees that the intellectual property rights in any third party tools vest with its licensors. The Customer agrees that such third party tools will be governed by separate licensing terms executed by the Customer with the licensors.
6.6 The Customer shall not assert, or authorize, assist, or encourage any third party to assert, against Company or any of its affiliates, vendors, business partners, or licensors, any infringement or misappropriation of intellectual property infringement claim regarding the Software or Subscription.
7. SUPPORT SERVICES
7.1 The Company represents and warrants that the Software will perform substantially in conformance this Agreement. This limited warranty is void if failure of the Software has resulted from: (i) failure to use the Software in accordance with this Agreement or any misuse or improper use of the Software, (ii) modifications made by the Customer, a Permitted User, or a third party not authorized by the Company, (iii) a force majeure event, or (iv) any material breach of this Agreement by the Customer (other than non-payment of Fees); (v) breach of the terms of this Agreement by a Permitted User; or (vi) results on account of causes beyond the Company’s reasonable control including without limitation third party cloud environment, hardware, software, firmware or any malicious code such as trojan horses, viruses or malware.
7.2 In the event of any Error in the Software, the Customer’s sole and exclusive remedy, and the Company’s entire obligation and liability shall be, at the Company’s sole option, to either (i) provide Fixes to the Software, (ii) correct or replace the Software, or (iii) refund the Customer, a pro-rated amount of the applicable Fees pre-paid by the Customer covering the whole months that would have remained, absent such early termination, in the Subscription Term following the effective date of such early termination, and terminate this Agreement. Any corrected, upgraded or updated version of the Software will be warranted for the remainder of the Subscription.
8. DISCLAIMER OF WARRANTIES
8.1 THE SOFTWARE, ITS SUBSCRIPTION, SERVICES AND THE REPORTS ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS, CONDITIONS, WARRANTIES OR COVENANTS WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY EXPRESS, STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ARISING OTHERWISE IN LAW OR EQUITY OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED. THE SOFTWARE, ITS SUBSCRIPTION, THE SERVICES AND THE REPORTS MAY CONTAIN DEFECTS, BUGS OR ERRORS. THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ANY OF THE SOFTWARE, ITS SUBSCRIPTION, SERVICES AND THE REPORTS WILL MEET THE CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS/ERRORS IN THE SOFTWARE WILL BE CORRECTED. THE CUSTOMER ACKNOWLEDGES THAT THE COMPANY IS NOT LIABLE FOR TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SUBSCRIPTION, SOFTWARE, SERVICES AND THE REPORTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THE COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SOFTWARE AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR, TECHNICAL INFORMATION STORED THEREIN, (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SOFTWARE BY ANY THIRD PARTY, AND/OR (III) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, COMMUNICATED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SOFTWARE, THE SUBSCRIPTION, THE SERVICES OR THE REPORT. THE COMPANY AND ITS LICENSORS CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF SUBCRIPTION, SERVICES AND THE REPORT.
9. PAYMENT OF FEES
9.1 Payment Terms: The Customer will pay Company the applicable Fees as described in the Order Form on an advance basis. The Fees paid are non-cancellable and non-refundable.
9.2 Minimum Licenses and Additional Licenses. The Customer agrees that it will pay the minimum fees for Subscription as set out in the Order (“Minimum Licenses”), irrespective of the actual usage of the Subscription through its Permitted Users. If the Customer or its Permitted Users exceed the Minimum Licenses, the Customer has the Customer is permitted to add additional licenses (“Additional License”), by sending a request to the e-mail id as mentioned in the Order Form. All Additional Licenses shall be charged at a price mutually agreed between the Parties, and the payment for such Additional Licenses shall be paid on a forthwith basis by the Customer and within five (5) days of receipt of the new Order Form, failing which the Company reserves the right to suspend such Additional Licenses, without any liability.
9.3 Invoicing and Payment. Company will issue an invoice, in which case, payment for invoices must be received by Company within seven (7) days from the invoice date.
9.4 Late Payment Remedy. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. In addition to any other remedies available under law or this Agreement, the Company reserves the right to suspend the Subscription or any Services till receipt of full payment from the Customer.
9.5 Taxes. The Fees are exclusive of all applicable taxies and duties and the Customer shall be responsible for all taxes and duties under the Order Form.
10. TERM AND TERMINATION
10.1 The Agreement is valid for a period of one (1) year from the Effective Date (“Initial Term”). On completion of the Initial Term, the Agreement will automatically renew for successive terms of one (1) year each (each “Renewal Term”), unless terminated by either party with a prior written notice of not less than thirty (30) days prior to expiration of Initial Term or any of the Renewal Terms.
10.2 The Agreement can be terminated, in the event of any of the following situations:
(i) If a Party fails to perform or observe any material term of this Agreement and the failure continues unremedied for thirty (30) days after receipt of written notice; or
(ii) If the other Party becomes insolvent or involved in liquidation or termination of business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors.
10.3 Effects of Termination:
(i) Upon the expiry or any termination of the Agreement, the Customer’s right to use the Subscription and the Services shall immediately cease.
(ii) Any Fees due for the Subscription and Services prior to the expiration or termination date shall be paid immediately but no later than seven (7) days from the receipt of the invoices thereof.
(iii) All provisions herein that, by their very nature, shall survive any termination or expiration of this Agreement will survive.
11.1 The Customer shall indemnify, keep indemnified, defend (at the Company’s option) and hold harmless the Company, its directors, officers, employees, representatives, and its Affiliates against any and all claims, allegations, demands, costs or damages arising out of or in connection with: (i) the Customer’s breach of any of the terms and conditions of the Agreement; (ii) the Customer’s breach of or violation of applicable laws and regulations, (iii) use of the Software, or the Services other than as permitted under the Agreement; (iv) any acts, inactions, omissions, misconduct or negligence on part of the Permitted User; or (e) a third party claim for infringement or misappropriation of third-party intellectual property rights due to the acts or omissions of Customer or its Permitted Users.
12. LIMITATION OF LIABILITY
12.1 NOTWITHSTANDING ANYTHING CONTAINED HEREIN (i) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING LOSS OF BUSINESS, GOODWILL, REVENUE, USE OR OTHER ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, OR ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF CUSTOMER DATA), HOWSOEVER CAUSED IN CONNECTION WITH THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND (ii) THE MAXIMUM AGGREGATE LIABILITY OF THE COMPANY (WHETHER IN CONTRACT, TORT, OR UNDER LAW OR IN EQUITY) HEREUNDER FOR ALL DIRECT DAMAGES, UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE FEES RECEIVED BY THE COMPANY FROM THE CUSTOMER IN THREE (03) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT UNDER THE APPLICABLE ORDER IN RELATION TO WHICH SUCH CLAIM HAS ARISEN. THE FOREGOING EXCLUSIONS OR LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY HEREIN. NO CLAIM AGAINST THE COMPANY MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE FACTS GIVING RISE TO SUCH CLAIM HAVE ARISEN.
13. NON-SOLICITATION AGREEMENT
13.1 Each party agrees that it will not, during the term of this Agreement and for a period of one (1) year after the termination or expiration of this Agreement, directly or indirectly, solicit or hire the services of (for employment, consulting or otherwise), accept the services of, or employ or engage any person who is employed by the other party.
14. GOVERNING LAW; DISPUTE RESOLUTION
14.1 Governing Law. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.
14.2 Dispute Resolution. The parties waive their rights to seek remedies in court in any jurisdiction, and will resolve any and all claims, disputes, or controversies relating in any way to this Agreement (“Disputes“) as set forth in this Section. Nothing in this Section will be construed to waive any rights or timely performance of any obligations under this Agreement. The party raising the Dispute will promptly provide the other party with a written notice reasonably detailing the Dispute (a “Dispute Notice“). The parties will attempt to resolve the Dispute during the 30-day period after a party’s receipt of a Dispute Notice.
14.3 Arbitration. If the Dispute is not resolved through negotiation after 30 days of receipt of Dispute Notice, the parties will submit the Dispute to final and binding arbitration administered under by the American Arbitration Association under its Commercial Arbitration Rules (“Rules”). The arbitration will be conducted by a mutually agreed arbitrator appointed as per the Rules and the seat of arbitration will be at Delaware. The arbitrator’s award may be entered and enforced in any court with competent jurisdiction. The costs of the arbitration proceeding, including reasonable attorneys’ fees and costs, will be determined by the arbitrator, who may apportion costs equally, or in accordance with any finding of fault or lack of good faith of either party.
15.1 Advertising or Publicity. The Company may use the name or marks (including but not limited to trademarks, service marks or logos), refer to or identify of the Customer in advertising or publicity releases, promotional or for marketing correspondence.
15.2 Audit. The Company shall be entitled to, on itself or through its representatives, auditors, or agents remotely inspect, examine, audit the Customer’s use of the Software to ensure the compliance with terms of this Agreement. The Customer shall promptly co-operate with the Company’s internal or external auditors to allow a prompt and accurate audit of the Customer’s use of the Software and provide records and data as may be required by the Company. The Customer shall also co-operate in good faith with the Company and shall correct any practices, which are found to be deficient as a result of any such audit within a reasonable time after receipt of the Company’s or their auditor’s audit report. If any deviations or defaults are found, the Customer shall bear the expense of such audit.
15.3 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
15.4 Assignment. This Agreement is not assignable, transferable or sublicensable by either Party except with prior written consent of the other Party. For avoidance of doubts, change of control or internal reorganization of a party shall not deem to be an assignment for the purpose of this clause and no prior approval from the other party shall be required for the same.
15.5 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. No Party shall have the authority to bind or make any representations on behalf of any other Party, and no Party shall hold itself out as such or knowingly permit another to rely on such belief.
15.6 Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given: (i) when received, if personally delivered at the address set out in the Order Form; (ii) when receipt is electronically confirmed, if transmitted by e-mail; (iii) the day after it is sent, if sent for next day delivery by recognized overnight courier delivery service at the address set out in the Order Form.
15.7 Entire Agreement. The Terms and Conditions along with the DPA and Order Form is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
15.8 Execution. Each Agreement may be executed in one or more counterparts (including scanned copies), all of which when signed and taken together constitute a single agreement between the Parties.