Terms of Service

Last Updated: July 27, 2023

BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE TERMS OF SERVICE OR BY EXECUTING AN ORDER FORM OR COMPLETING AN ONLINE ORDERING FLOW THAT REFERENCES THESE TERMS OF SERVICE (THE “ORDER FORM”, AND TOGETHER WITH THESE TERMS OF SERVICE, THIS “AGREEMENT”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THESE TERMS OF SERVICE. 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 TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE COMPANY SERVICE (AS DEFINED BELOW).

This Agreement, by and between Customer and Abbey Labs Inc. (“Company”), is effective as of the date set forth in the Order Form or the date on which Customer clicks a box accepting this Agreement (the “Effective Date”) and governs Customer’s use of Company’s proprietary software-as-a-service platform (the “Company Platform”) and the Company Software (as defined below, together with the Company Platform, the “Company Service”), which provides access management services to secure granular access to the customer’s cloud infrastructure. Company reserves the right to change or modify portions of this Agreement at any time. If Company does so, it will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. Company will also notify Customer, either through the Company Service user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Company Service or changes made for legal reasons may become effective immediately; provided, that, if any such changes or modifications materially adversely affect Customer, Customer may terminate this Agreement upon written notice to Company within fourteen (14) days’ of receiving notice of such change or modification. Customer’s continued use of the Company Service thereafter constitutes acceptance of such changes or modifications. Each of Company and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.

1. ACCESS TO COMPANY SERVICE.

1. Access to Platform. Company will use commercially reasonable efforts to make the Company Platform available to Customer. Subject to the terms and conditions of this Agreement, Company hereby grants Customer the limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Company Platform during the Term solely for Customer’s internal business purposes.

2. Access to Company API. Certain software components may be downloaded locally from the Company Platform (the “Company Software”) so that the Company may use the Company Platform. To the extent Customer subscribes to the Company Software via the Order Form, Company will use commercially reasonable efforts to make the Company Software available to Customer. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer the limited, non-exclusive, non-transferable, non-sublicensable right and license to install and use the Company Software during the Term solely to use the Company Platform for Customer’s internal business purposes.

3. License Restrictions and Responsibilities. Customer will not use the Company Service for any purpose other than the purposes expressly set forth herein. Customer may not, directly or indirectly: (a) 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 Company Service; (b) modify, translate, or create derivative works based on the Company Service (except to the extent expressly permitted by Company); (c) use the Company Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Company Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like. Customer will be responsible for maintaining the confidentiality of Customer’s usernames, passwords and account details. Customer will be responsible for any actions taken by parties with access to such usernames and passwords, and Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer). Customer will inform Company immediately if it discovers that any such username and/or password has been disclosed or made available to a third party.

4. License to Customer Data. Customer hereby grants to Company a non-exclusive, royalty-free, fully paid up, non-sublicensable (except to contractors and consultants performing services on behalf of Company), non-transferable (subject to Section 10.6) right and license to copy, distribute, display, create derivative works of and otherwise use the data or information submitted, transmitted or uploaded by Customer via the Company Service (the “Customer Data”) to (a) perform its obligations under this Agreement, (b) improve and develop its products and services and (c) create anonymized and/or aggregated data (“Aggregated Data”), which Aggregated Data will not identity of Customer and/or its individual clients. For the avoidance of doubt, Aggregated Data is not Customer Data. Company will comply with its obligations under Company’s Privacy Policy set forth at: https://docs.abbey.io/reference/privacy-policy

5. Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Company Service or Evaluation Services (as defined below). Company will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants to Company a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

6. Free Services. Company may offer certain Company Service at no charge, including trial subscriptions, other free services, and pre-release, alpha or beta versions or features (collectively, “Free Services”). Customer’s use of Free Services is subject to any additional terms that Company may specify and limited to the number of free internal use licenses specified on the Order Form.. Except as otherwise set forth in this Section, this Agreement applies to Free Services. Company may modify or terminate Customer’s right to use Free Services at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL OBLIGATIONS, REPRESENTATIONS, WARRANTIES, COVENANTS, AND LIABILITIES WITH RESPECT TO FREE SERVICES, INCLUDING ANY INDEMNITY OBLIGATIONS, AND COMPANY’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF FREE SERVICES WILL BE U.S. $100. Company may discontinue Free Services at any time in its sole discretion.

7. Third Party Services. The Company Service may enable access to or integration with certain third party services, products, solutions, software or technology which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party (collectively, the “Third Party Services”). The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services. Some Third Party Services may provide Company with access to certain information that Customer has provided to such Third Party Services. Any data, information or other materials collected via or received by Company from any Third Party Service will be deemed Customer Data and will be treated by Company as Confidential Information. Company has no control over and is not responsible for such Third Party Services, including for the accuracy, availability, reliability or completeness of information shared by or available through Third Party Services, or on the privacy practices of Third Party Services. Company encourages Customer to review the privacy policies of Third Party Services prior to using them. Company will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services. Company enables these Third Party Services merely as a convenience and the integration or inclusion of such Third Party Services does not imply an endorsement or recommendation. Any dealings Customer has with third parties while using the Company Service are between Customer and the third party. Company is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party.

2. OWNERSHIP; RESERVATION OF RIGHTS.

1. Customer acknowledges and agrees that, as between the Parties, Company retains all right, title and interest in and to the Company Service and all associated intellectual property rights. Company grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Company Service. Customer will acquire no right, title, or interest in and to the Company Service other than the limited licensed rights expressly granted under this Agreement. Notwithstanding the foregoing, Customer retains all right, title and interest in and to the Customer Data.

3. FEES; PAYMENT TERMS.

1. Fees; Payment Terms. In exchange for use of the Company Service and the rights granted pursuant to this Agreement, Customer will pay to Company the fees set forth in the Order Form (the “Service Fees”) in accordance with the terms and conditions set forth herein and therein. The Service Fees may include a recurring subscription fee for access to the Company Service (“Subscription Fees”). To the extent the Company Service or any portion thereof is made available for any fee, Customer may be required to select a payment plan and provide information regarding Customer’s credit card or other payment instrument. Customer represent and warrant to Company that such information is true and that Company is authorized to use the payment instrument. Customer will promptly update its account information with Company or the Payment Processor (as defined below), as applicable, of any changes (for example, a change in Customer’s billing address or credit card expiration date) that may occur. Customer agrees to pay Company the amount that is specified in the Order Form in accordance with the terms of such Order Form and these Terms of Service. If Customer’s payment plan includes Subscription Fees, Customer hereby authorizes Company (through the Payment Processor) to bill Customer’s payment instrument in advance on such periodic basis in accordance with the terms of the applicable payment plan until Customer terminates its account, and Customer further agrees to pay any charges so incurred. If Customer disputes any charges, Customer must let Company know within sixty (60) days after the date that Company charges Customer, or within such longer period of time as may be required under applicable law. Company reserve the right to change Company’s prices. If Company does change prices, Company will provide notice of the change through the Company Service user interface, in an email notification or through other reasonable means, at Company’s option, at least thirty (30) days before the change is to take effect. Customer’s continued use of the Company Service after the price change becomes effective constitutes Customer’s agreement to pay the changed amount.

2. Payment Processing. Notwithstanding any amounts owed to Company hereunder, COMPANY DOES NOT PROCESS PAYMENT FOR ANY COMPANY SERVICE. To facilitate payment for the Company Service via bank account, credit card, or debit card, Company uses third-party payment processors (collectively, “Payment Processors”). These payment processing services are provided by the Payment Processors and are subject to the applicable Payment Processor’s terms and conditions, privacy policy, and all other relevant agreements (collectively, the “Payment Processor Agreements”). By agreeing to this Agreement, users that use the payment functions of the Company Service also agree to be bound by the applicable Payment Processor aagreement for the payment function the user is using, as the same may be modified by the applicable Payment Processor from time to time. Customer hereby authorizes the applicable Payment Processor to store and continue billing Customer’s specified payment method even after such payment method has expired, to avoid interruptions in payment for Customer’s use of the Company Service. Please contact the applicable Payment Processor for more information. Company assumes no liability or responsibility for any payments Customer makes through the Company Service.

3. Refunds and Cancellations. Payments made by Customers hereunder are final and non-refundable, unless otherwise determined by Company. Customer may cancel Customer’s subscription online by emailing Company at: [[e-mail]].

4. Net of Taxes. All amounts payable by Customer to Company hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, knowhow payments, customs, privilege, excise, sales, use, valueadded and property taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Company. Customer will not withhold any Taxes from any amounts due Company.

4. TERM; TERMINATION.

1. Term; Termination. Subject to earlier termination as set forth in this Agreement, this Agreement will commence on the Effective Date and continue for the initial subscription period set forth in the Order Form (the “Initial Term”). Thereafter, the Agreement shall automatically renew for additional periods of the same duration, unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term (each, a “Renewal Term”, and together with the Initial Term, the “Term”). If Customer does not agree to automatic renewals, Customer may opt-out of automatic renewals by providing written notice to Abbey Labs within fourteen (14) days of the date of the initial Order Form. In addition, a Party may terminate this Agreement immediately if the other Party materially breaches any material provision of this Agreement and does not cure such material breach within thirty (30) days after receiving written notice thereof.

2. Effect of Termination. In the event that this Agreement expires or is terminated for any reason, all rights granted to Customer with respect to the Company Service will immediately terminate, and Customer will (a) cease use of the Company Service; and (b) pay to Company all amounts due and owing under this Agreement (to the extent not previously paid). In addition, upon expiration or termination of this Agreement, each Recipient (as defined below) will return to the Discloser (as defined below) or destroy, at the Discloser’s election, all of the Discloser’s Confidential Information and all copies or other tangible embodiments thereof.

3. Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.3 (License Restrictions and Responsibilities), 1.4 (License to Customer Data), 1.5 (Feedback), 2(Ownership; Reservation of Rights), 3 (Fees; Payment Terms), 4 (Term; Termination), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Limitations of Liability), 8 (Indemnification) and 10 (General) will survive.

5. CONFIDENTIALITY

1. Definition of Confidential information. “Confidential Information” means, subject to the exceptions set forth in Section 5.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a Party (the “Discloser”) to the other Party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, source code, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof. The Company Service is the Confidential Information of Company.

2. Exceptions to Confidential Information. Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.

3. Use and Disclosure of Confidential Information. The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees and contractors who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees or contractors are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.

4. Disclosures Required by Law. In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.

6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

1. Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. In addition, Customer represents, warrants and covenants that (i) it has all rights necessary to permit Company to use the Customer Data as contemplated hereunder and (ii) the Customer Data will be true, accurate and complete.

2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY SERVICE IS PROVIDED ON AN “AS-IS” BASIS AND COMPANY DISCLAIMS 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. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE COMPANY SERVICE IS ERROR-FREE OR THAT OPERATION OF THE COMPANY SERVICE WILL BE SECURE OR UNINTERRUPTED.

7. LIMITATIONS OF LIABILITY.

1. Disclaimer of Consequential Damages. EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.3 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE AND (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.

2. General Cap on Liability. EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.3 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING 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 AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

8. INDEMNIFICATION.

1. Indemnification by Company. Company will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the Company Service infringes or misappropriates any United States copyright or trade secret (except for claims for which Company is entitled to indemnification under Section 8.2, in which case Company will have no indemnification obligations with respect to such claim). Company will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the Company Service by any party other than Company; (b) the combination, operation, or use of the Company Service with other product(s), data or services where the Company Service would not by itself be infringing; or (c) unauthorized or improper use of the Company Service. This Section 8.1 states Company’ entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

2. Indemnification by Customer. Customer will indemnify, defend and hold Company and the officers, directors, agents, and employees of Company (“Company Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Company Indemnified Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (a) any use by Customer of the Company Service in violation of this Agreement, (b) Company’s use of the Customer Data in accordance with this Agreement, or (c) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services.

3. Action in Response to Potential Infringement. If the use of the Company Service or any portion thereof by Customer has become, or in Company’s opinion is likely to become, the subject of any claim of infringement, Company may at its option and expense (a) procure for Customer the right to continue using the Company Service as set forth hereunder; (b) replace or modify the Company Service to make it non-infringing so long as the Company Service has at least equivalent functionality; (c) substitute an equivalent for the Company Service or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.

4. Indemnification Procedure. If a Customer Indemnified Party or a Company Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.

9. GOVERNMENT MATTERS.

1. Customer may not remove or export from the United States or allow the export or re-export of the Company Service, 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. As defined in FAR section 2.101, the Company Service (including the software, documentation and data related thereto) are “commercial items” and according to DFAR section 252.2277014(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.

10. GENERAL

1. Force Majeure. No Party hereto will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond such Party’s reasonable control, including: (a) any fire, explosion, unusually severe weather, natural disaster or Act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e) any strike, lockout or other labor dispute or action; or (f) any action taken in response to any of the foregoing events by any civil or military authority.

2. Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date. The terms and conditions of this Agreement are severable. If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms will remain in force. Further, the term or condition which is held to be illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the Parties as of the Effective Date.

3. Relationship of the Parties. Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third Parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.

4. Remedies. Each Party acknowledges that a breach by it of any of the terms of Section 5 may cause irreparable harm to the Discloser for which Discloser could not be adequately compensated by money damages. Accordingly, Recipient agrees that, in addition to all other remedies available to Discloser in an action at law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, the Discloser may seek, from any court of competent jurisdiction and without the necessity of proving actual damages or posting any bond or other security, temporary and permanent injunctive relief, including specific performance of the terms of Section 5.

5. Governing Law; Consent to Jurisdiction. The law, including the statutes of limitation, of the State of Delaware will govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of Delaware and of the United States of America located in Delaware (the “Delaware Courts”) for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Delaware Courts and agrees not to plead or claim in any Delaware Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Delaware Courts.

6. Assignment; Delegation; Binding Effect. Neither Party may assign or transfer this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement without the written consent of the other Party to an affiliate or corporation or other business entity succeeding to all or substantially all the assets and business of the assigning Party to which this Agreement relates by merger or purchase. Company may delegate its duties hereunder to any of its affiliates as necessary to perform its obligations hereunder, provided that Company will bear full liability and responsibility for their acts and omissions. Any attempted assignment, delegation or transfer by a Party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and permitted assigns.

7. Notices. All notices under this Agreement will be in writing and will reference this Agreement. Notices will be deemed given: (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) by email for which receipt is confirmed or (d) one (1) day after deposit with an internationally recognized commercial overnight carrier, with written verification of receipt. All communications will be sent to the applicable address provided on the Order Form, or such other addresses subsequently communicated to the other Party in writing in accordance with this Section 10.7.

8. No Waiver. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

9. Complete Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. To the extent of any conflict or inconsistency between the provisions in the body of this Service Agreement and any applicable Order Form, the terms of this Service Agreement will prevail, unless the Order Form expressly amends a provision in this Service Agreement.