This Platform Access and Services Agreement (this “Agreement”) governs therights to use the software as a service platform (such platform, along with allrelated updates, upgrades and documentation are referred to collectively as the“Product”)of Paramify, Inc, a Delaware corporation (“Paramify”)on a subscription basis, as well as other related services that may be providedby Paramify. A “Customer” isa person or legal entity that has executed an Order Form (as defined below).(Customer and Paramify are referred to collectively herein as the “parties” andindividually as a “party”).This Agreement is effective as of the earlier of (i) Customer’s initial use ofthe Product; or (ii) the effective date set forth in the order form or otheragreement (“Order Form”)pursuant to which Customer has agreed to access the Product on a subscriptionbasis (such date, the “Effective Date”).The Product is protected by copyright laws and international copyrighttreaties, as well as other intellectual property laws and treaties. ThisAgreement is also subject to the provisions of Paramify’s Data Processing Agreement (“DPA”).
1. PRODUCT ACCESS.
1.1. Provisionof the Product. For a set term as set forth on the Order Form (“Contract Term”), and subject to Customer’s payment ofall applicable Fees (defined below), Paramify hereby grants Customer a limited, nonexclusive, nontransferable,non-sublicensable, revocable right to access and use the Product on asubscription basis solely for the purposes described in this Agreement. Anyaccess, use, or attempted access or use of the Product other than as expressly permitted in theAgreement is a material breach of this Agreement.
1.2. Accounts. Inorder to access and use certain features of the Product, Customer must registerfor an account (“Account”).Use of and access to the Product, in whole or in part, is permitted to thosepersons designated by Customer pursuant to the terms of this Agreement (“Permitted Users”). IfCustomer is given login information to access the Product, Customer shallrequire that all Permitted Users keep user ID and login information strictlyconfidential and not share such information with any unauthorized person.Customer is responsible for maintaining the confidentiality of its Accountlogin information and is fully responsible for Permitted User activities thatoccur under the Customer’s Account. Although Paramify has no obligation tomonitor Customer’s access and use of the Products, Paramify may do so and mayprohibit any use of the Products it believes may be (or alleged to be) inviolation of the Agreement.
1.3. AccountAccess. Customer acknowledges that while the security ofCustomer’s Account will be maintained through the use of logical authenticationmechanisms, it is possible for Customer’s Account to be accessed byunauthorized third parties via communication between Customer and Paramifyusing the internet, other network communications, facilities, telephone, orother electronic means. Customer may permit its independent contractors andconsultants who are not competitors of Paramify (“Contractors”)and Affiliates (as defined below) to serve as Permitted Users, providedCustomer remains responsible for compliance by each such Contractor orAffiliate with all of the terms and conditions of this Agreement and any suchuse of the Product by such Contractor or Affiliate is for the sole benefit ofCustomer. “Affiliate”means any entity under the control of Customer where “control” means ownershipof or the right to control greater than 50% of the voting securities of suchentity.
1.4. GeneralRestrictions. Customer shall not: (a) rent, lease, copy, sell,outsource, provide access to or sublicense the Product to a third party or usethe Product to provide a service to a third-party, (b) reverse engineer,decompile, disassemble, decipher, or otherwise seek to obtain the source code,object code, underlying structure, algorithms, trade secrets, ConfidentialInformation, or APIs of or to the Product, except to the extent expresslypermitted by applicable law (and then only upon advance notice to Paramify),(c) modify the Product, or create any derivative product from any of theforegoing, (d) remove or obscure any product identification, proprietary,copyright or other notices contained in the Product (including any reports ordata printed from the Product), (e) incorporate the Product into any otheroffering (whether software as a service or otherwise), or (f) publiclydisseminate information or analysis regarding the performance of the Product.
1.5. Enterpriserisk management or information security and Legal Advice.Customer hereby acknowledges and agrees that any information provided to theCustomer from time to time regarding or derived from any content (includingCustomer Data as defined in this Agreement) is not developed or provided byParamify as either legal or enterprise risk management or information securityadvice and will not be used or treated by Customer as legal or enterprise riskmanagement or information security advice. Customer agrees not toconstrue any content or materials listed on the Product as legal, insurance orenterprise risk management or information security advice or as an offer tosell, or as a solicitation of an offer to buy, any information security productor instrument. The Product and content made available through the Product areintended to be used by the Customer for document management purposes only.Paramify shall have no liability for any legal or enterprise risk management orinformation security or other decisions made based upon Customer's use of theProduct.
1.6. Export.The Product may be subject to U.S. export control laws and may be subject toexport or import regulations in other countries. Customer agrees not to export,reexport, or transfer, directly or indirectly, any U.S. technical data acquiredfrom Paramify, or any products utilizing such data, in violation of the UnitedStates export laws or regulations.
1.7. Securityand Privacy. Paramify will use and maintain commerciallyreasonable administrative, technical and physical safeguards designed toprotect the confidentiality, integrity, and availability of Customer Dataprocessed by Paramify in connection with Product as further described in theDPA. Both Parties agree to comply with the terms of the DPA in connection withthe processing of Customer Data by Paramify.
1.8. HostingServices. Paramify will provide the hosting servicesfor the Product ("Hosting Services")through a third-party hosting facility (such as AWS) and may update thecontent, functionality and user interface of the Hosting Services from time totime in its sole discretion and in accordance with this Agreement. Customerwill be solely responsible for the data entered in the Product, whether enteredby the Customer or by Paramify on behalf of the Customer.
1.9. HostingService Access. In order to use the Product, Customer musthave or obtain access to the internet. Customer agrees that Paramify is notproviding Customer with access to the internet in order to use the Product andthat Customer is solely responsible for obtaining and maintaining such internetaccess and for providing all equipment necessary to obtain and maintain suchinternet access. Paramify does not and cannot control the flow of data toor from Paramify’s network, designated hosting facility and/or other portions ofthe internet. Such flow depends in large part on the performance ofinternet services provided or controlled by third parties. At times,actions or inactions of such third parties can impair or disrupt Customer’sconnections to the internet (or portions thereof). Paramify agrees to usecommercially reasonable efforts to take any actions it deems appropriate toremedy and avoid such events. However, Paramify cannot guarantee thatsuch events will not occur. Accordingly, Paramify disclaims any and all liabilityresulting from or related to such events.
2. CUSTOMER DATA.
2.1. Generally. “Customer Data”means any information or other data of any type which is provided by Customerto Paramify in connection with providing the Product. Customer is solelyresponsible for the accuracy, content and legality of all Customer Data and itsuse by Customer.
2.2. Useof Customer Data. Customer represents and warrants to Paramify that Customerhas sufficient rights in the Customer Data to authorize Paramify to process,distribute and display the Customer Data as contemplated by this Agreement andthe functionality of the Product, and that the Customer Data does not infringethe rights of any third party. In connection with Customer’s use of theProduct, certain features may permit Customer to interact or share CustomerData with third party websites or services. If Customer chooses to transmitCustomer Data or provide any other information to such third parties, Customeragrees to be bound by any applicable third party terms of use, and Paramifyaccepts no responsibility or liability for any such third party services. Bothparties agree to comply with the terms of the DPA in connection with theCustomer Data.
2.3. Rightsin Customer Data. As between the parties, Customer shall retain all right,title (if applicable), and interest (including any and all intellectualproperty rights) in and to the Customer Data as provided to Paramify. Subject to the terms of this Agreement, Customer hereby grants toParamify a non-exclusive, worldwide, royalty-free right to use, copy, store,transmit, modify, create derivative works of and display (a) the Customer Datasolely to the extent necessary to provide the Product to Customer.Notwithstanding the foregoing Customer agrees that Paramify may, to the extentpermissible under applicable law and this Agreement, use for its businesspurposes derivative works of the Customer Data and all right, title andinterest (including any and all intellectual property rights) in and to suchderivative works using de-identified Customer Data shall be owned by Paramify.
3. OWNERSHIP
3.1. Thisis a subscription agreement for use of the Product and not an agreement forsale. Customer acknowledges that it is obtaining only a limited right to theProduct and that irrespective of any use of the words “purchase”, “sale” orlike terms hereunder no ownership rights are being conveyed to Customer underthis Agreement or otherwise and Customer agrees that Paramify or its suppliersretain all right, title and interest (including all patent, copyright, tradesecret and other intellectual property rights) in and to the Product,documentation related to the Product (“Documentation”),Professional Services deliverables (including custom software developed byParamify at Customer’s request) and any and all related and underlying software(including interfaces), databases (including data models, structures,non-Customer specific data and aggregated statistical data contained therein),technology, reports and documentation (collectively, “Paramify Technology”).Further, Customer acknowledges that the Product is offered as an on-line,hosted solution, and that Customer has no right to obtain a copy of the Productitself.
3.2. Customeracknowledges that all intellectual property rights, including copyrights,patents, trademarks, and trade secrets, in the Product and its content areowned by Paramify or its suppliers. Neither this Agreement (norCustomer’s access to the Product) transfers to Customer or any third party anyrights, title or interest in or to such intellectual property rights, exceptfor the limited access rights set forth in this Agreement.
4. ACCEPTABLE USE POLICY
4.1. Customerhereby agrees to the following terms that constitute Paramify’s “Acceptable UsePolicy”:
(a) Customer agrees not to use the Product tocollect, upload, transmit, display, or distribute any Customer Data (i) thatviolates any third-party right, including any copyright, trademark, patent,trade secret, moral right, privacy right, right of publicity, or any otherintellectual property or proprietary right; (ii) that is unlawful, harassing,abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar,defamatory, false, intentionally misleading, trade libelous, pornographic,obscene, patently offensive, promotes racism, bigotry, hatred, or physical harmof any kind against any group or individual or is otherwise objectionable; or(iii) that is in violation of any law, regulation, or obligations orrestrictions imposed by any third party.
(b) In addition, Customer agrees not to: (i) upload,transmit, or distribute to or through the Product any computer viruses, worms,or any software intended to damage or alter a computer system or data; (ii)send through the Product unsolicited or unauthorized advertising, promotionalmaterials, junk mail, spam, chain letters, pyramid schemes, or any other formof duplicative or unsolicited messages, whether commercial or otherwise; (iii)use the Product to harvest, collect, gather or assemble information or dataregarding other users, including email addresses, without their consent; (iv)interfere with, disrupt, or create an undue burden on servers or networksconnected to the Product, or violate the regulations, policies or procedures ofsuch networks; (v) attempt to gain unauthorized access to the Product (or toother computer systems or networks connected to or used together with theProduct), whether through credential mining or any other means; (vi) harass orinterfere with any other user’s use and enjoyment of the Product; or (vi) usesoftware or automated agents or scripts to produce multiple accounts on theProduct, or to generate automated searches, requests, or queries to (or tostrip, scrape, or mine data from) the Product.
4.2. Paramifyreserves the right to investigate and/or take appropriate action against theCustomer in Paramify’s sole discretion if the Customer violates this AcceptableUse Policy or any other terms of this Agreement or otherwise create liabilityfor Paramify or any other person. Such action may include terminatingCustomer’s Account and/or reporting Customer to law enforcement authorities.
5. FEES & PAYMENT
All fees owed by Customer to Paramify are set forthin the Order Form (“Fee(s)”).Fees are subject to periodic increases after the initial Contract Term andbecome effective beginning on the first day of each applicable renewal term;provided, that Paramify will notify Customer in writing of any such increaseprior to its effectiveness. If Customer objects to the increase, then Customermay terminate this Agreement effective on expiration of the then-currentContract Term. Customer acknowledges that the expiration of any discount orincentive programs to which Customer was previously entitled shall notconstitute a Fee increase or otherwise require notice thereof. Except asexpressly set forth in Section 7 (Limited Warranty), all Fees arenon-refundable. Paramify’s Fees are exclusive of all shipping costs andCustomer is required to pay any sales, withholding, or similar taxes or levies,other than taxes based on the income of Paramify. Any late payments shallbe subject to a service charge equal to 1.5% per month of the amount due or themaximum amount allowed by law, whichever is less.
6. TERM AND TERMINATION
6.1. Term. This Agreement is effective as of the Effective Date and expires on thedate of expiration or termination of the Contract Term. Upon expirationof the initial Contract Term, this Agreement shall automatically renew for theperiods set forth in the Order Form, unless either party gives the otherwritten notice of termination at least 30 days prior to expiration of thethen-current Contract Term.
6.2. Terminationfor Cause. Either party may terminate this Agreement if the other party(a) fails to cure any material breach of this Agreement (including a failure topay fees) within 10 days after written notice; provided, if the breach isreasonably incapable of cure, then the non-breaching party may immediatelyterminate this Agreement; (b) ceases operation without a successor; or (c)seeks protection under any bankruptcy, receivership, trust deed, creditors’arrangement, composition, or comparable proceeding, or if any such proceedingis instituted against that party (and not dismissed within 60 days thereafter).
6.3. Effectof Termination. Upon any termination of this Agreement, Customer shallimmediately cease any and all use of and access to the Product (including anyand all related Paramify Technology) and delete (or, at Paramify’s request,return) any and all copies of the Documentation, any Paramify authenticationmechanisms or access codes and any other Paramify Confidential Information inits possession. Customer acknowledges that following termination it shall haveno further access to any Customer Data incorporated into the Product, and thatParamify may delete any such data at any time. Termination of this Agreement isnot an exclusive remedy and the exercise of either party of any remedy underthis Agreement will be without prejudice to any other remedies it may haveunder this Agreement, by law, or otherwise.
6.4. Suspension. In addition to any other remedies available at law or in equity,Paramify will have the right, in its sole discretion, to immediately suspendCustomers’ access to the Application in the event of acts or omissions ofCustomer or its Authorized Users not in compliance with the terms of theAgreement. Paramify will use commercially reasonable efforts to give Customerprior email notice ofsuspension under this Section, and access to the Application will resume oncethe non-compliance is resolved. Fees will continue to accrue and shall not betolled during any suspension period. Paramify will not be liable to Customer orits Authorized Users for any loss, damage or inconvenience suffered as a resultof any suspension, unless pursuant to a breach of warranty under Section 7.
6.5. Survival.The following Sections shall survive any expiration or termination of thisAgreement: 1.4 (General Restrictions), 1.5 (Enterprise risk management orinformation security and Legal Advice) 1.6 (Export), 2.3 (Rights inCustomer Data), 3 (Ownership), 5 (Fees and Payment), 6 (Term and Termination),7.2 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 10(Indemnification), 11 (Confidential Information), and 12 (General Terms).
7. LIMITED WARRANTY
7.1. LimitedWarranty. Paramify warrants, for Customer’s benefit only, that theProduct will operate in substantial conformity with all applicable productdescriptions provided to Customer in writing. Paramify does not warrantthat Customer’s use of the Product will be uninterrupted or error-free, nordoes Paramify warrant that it will review the Customer Data for accuracy orthat it will preserve or maintain the Customer Data without loss. Paramify’s sole liability (and Customer’s sole and exclusive remedy) forany breach of this warranty shall be, in Paramify’s sole discretion and at nocharge to Customer, to use commercially reasonable efforts to provide Customerwith an error correction or work-around that corrects the reportednon-conformity, or if Paramify determines such remedies to be impracticable, toallow Customer to terminate the Contract Term and receive as its sole remedy arefund of any fees Customer has pre-paid for use of the Product or relatedservices it has not received as of the date of the warranty claim. Thelimited warranty set forth in this Section 7.1 shall not apply: (i) unlessCustomer makes a claim within 30 days of the date on which the condition givingrise to the claim first appeared, or (ii) if the error was caused by misuse,unauthorized modifications or third-party hardware, software or services or(iii) to use provided on a no-charge or evaluation basis.
7.2. WarrantyDisclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1, THE PRODUCT,HOSTED SERVICES AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”.NEITHER PARAMIFY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS ORIMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OFMERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTEDBY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BELIMITED TO THE LIMITED WARRANTY PERIOD. PARAMIFY SHALL NOT BE LIABLE FORDELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OFTHE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLECONTROL OF PARAMIFY. PARAMIFY IS NOT A LAW FIRM AND NO LEGAL ADVICE ISBEING PROVIDED THROUGH CUSTOMERS USE OF THE PRODUCT OR ANY PROFESSIONALSERVICES.
8. ADDITIONAL SERVICES
8.1. ProfessionalServices. Any professional consulting services (“Professional Services”)to be provided by Paramify to Customer will be set forth in the Order Form or aseparate agreement to be signed by both parties describing the work to beperformed, fees and any applicable milestones, dependencies and other technicalspecifications or related information.
8.2. Support. Paramify shall provide email support to Customer from 9AM to 5PM MountainStandard Time, Monday through to Friday, business days. Paramify shalluse commercially reasonable efforts to respond to support requests within onebusiness day and shall address (internally and externally) such supportrequests in a commercially reasonable manner. Support shall include,without limitation, troubleshooting system functionality, providing guidance onusage and workflow, and identifying and escalating issues which Paramifyprioritizes, in its sole and absolute discretion, based on severity, scope andimpact. Paramify may offer personalized training, implementation, and adoptionprograms at an additional cost. Paramify shall have no obligation to provideany custom code development, API scripting, or contractual engineering servicesfor Customer. Paramify shall use commercially reasonable efforts toensure that Customer may access and use the Product at least ninety-nine andnine tenths percent (99.9%) of the time each calendar month except in the caseof scheduled maintenance for which Paramify will provide advance notificationto Customer.
9. LIMITATION OF REMEDIES ANDDAMAGES
9.1. CONSEQUENTIAL DAMAGES. NEITHERPARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OFSECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT,SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDINGLOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THEPOSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2. MUTUAL LIABILITY CAP. NOTWITHSTANDINGANY OTHER PROVISION OF THIS AGREEMENT, EITHER PARTY’S AND THEIR SUPPLIERS’ENTIRE LIABILITY TO THE OTHER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BYCUSTOMER TO PARAMIFY DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TOTHE LIABILITY UNDER THIS AGREEMENT. WITH RESPECT TO ANY FREE TRIAL OF THEPRODUCTS OR SERVICES, PARAMIFY’S AGGREGATE LIABILITY WILL IN NO EVENT EXCEEDONE HUNDRED U.S. DOLLARS, REGARDLESS OF ANY THEORY OF LIABILITY, ANDNOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY.
9.3. EXCLUSIONS. THE LIABILITY CAP IN SECTION Error! Reference source not found..2 DOES NOTAPPLY TO: (a) ANY INDEMNIFICATION OBLIGATIONS SET OUT IN SECTION 10; (b) LIABILITYRESULTING FROM EITHER PARTY’S MISAPPROPRIATION OR INFRINGEMENT OF THE OTHERPARTY’S OR A THIRD PARTY’S INTELLECTUAL PROPERTY; (c) LIABILITY RESULTING FROM BREACHOF SECTION 1.4; (d) CUSTOMER’S LIABILITY FOR FEES UNDER THIS AGREEMENT; (e)LIABILITY RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT;AND (f) ANY LIABILITY THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
9.4. Theparties agree that the limitations specified in this Section 9 will survive andapply even if any limited remedy specified in this Agreement is found to havefailed of its essential purpose.
10. INDEMNIFICATION
10.1. Paramify Indemnification. Paramify shall indemnify and hold harmless Customer, its licensors andits affiliates, officers, directors, employees, and agents from and against allthird-party claims, causes of action, costs, damages, losses, liabilities andexpenses (including attorneys’ fees and costs) arising out of or in connectionwith any and all claims brought by a thirdparty alleging that the Product violates, infringes, or misappropriates thepatent, copyright, trademark, or other intellectual property rights of anythird-party, provided that Paramify shall have received fromCustomer: (a) prompt written notice of such claim (but in any event notice insufficient time for Paramify to respond without prejudice); (b) the exclusiveright to control and direct the investigation, defense, or settlement (ifapplicable) of such claim; and (c) all reasonable necessary cooperation ofCustomer. If Customer’s use of the Product is, or in Paramify’s opinionis likely to be, enjoined due to a claim of infringement, or if required bysettlement, Paramify may, in its sole discretion: (a) substitute substantiallyfunctionally similar products or services; (b) procure for Customer the rightto continue using the Product; or if (a) and (b) are commerciallyimpracticable, (c) terminate the Agreement and refund to Customer the fees paidby Customer for the portion of the Contract Term which was paid by Customer butnot rendered by Paramify. The foregoing indemnification obligations of Paramifyshall not apply: (1) if the Product is modified by any party other thanParamify, but solely to the extent the alleged infringement is caused by suchmodification; (2) the Product is combined with other products or processes notauthorized by Paramify, but solely to the extent the alleged infringement iscaused by such combination; (3) to any unauthorized use of the Product; or (4)any action arising as a result of Customer Data or any third-party deliverablesor components contained within the Product. THIS SECTION 10 SETS FORTHPARAMIFY’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECTTO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
10.2. Customer Indemnification.Customer shall indemnify and hold harmless Paramify, its licensors and itsaffiliates, officers, directors, employees, and agents from and against allthird party claims, causes of action, costs, damages, losses, liabilities andexpenses (including attorneys’ fees and costs) arising out of or in connectionwith: (i) any action taken (or not taken) by Customer based upon use of theProduct; (ii) any Customer Data; and (iii) any service or product offered byCustomer in connection with or related to the Product, provided that Customershall have received from Paramify: (i) prompt written notice of such claim (butin any event notice in sufficient time for Customer to respond withoutprejudice); (ii) the exclusive right to control and direct the investigation,defense, or settlement (if applicable) of such claim; and (iii) all reasonablenecessary cooperation of Paramify.
11. CONFIDENTIAL INFORMATION
11.1. Each party agrees that allcode, inventions, know-how, business, technical information it obtains(“Receiving Party”) from the disclosing party (“Disclosing Party”) constitutethe confidential property of the Disclosing Party (“Confidential Information”),provided that it is identified as confidential at the time of disclosure orshould be reasonably known by the Receiving Party to be ConfidentialInformation due to the nature of the information disclosed and thecircumstances surrounding the disclosure. Any Paramify Technology,performance information relating to the Product, and the terms and conditionsof this Agreement shall be deemed Confidential Information of Paramify withoutany marking or further designation. Except as expressly authorized herein,the Receiving Party will hold in confidence and not use or disclose anyConfidential Information. Customer Data shall be deemed ConfidentialInformation of Customer without any marking or further designation subject tothe terms of Section 2 above. Except as expressly authorized herein, theReceiving Party will hold in confidence and not use or disclose anyConfidential Information. The Receiving Party’s nondisclosure obligationshall not apply to information which the Receiving Party can document: (i) wasrightfully in its possession or known to it prior to receipt of theConfidential Information; (ii) is or has become public knowledge through nofault of the Receiving Party; (iii) is rightfully obtained by the ReceivingParty from a third party without breach of any confidentiality obligation; (iv)is independently developed by employees of the Receiving Party who had noaccess to such information; or (v) is required to be disclosed pursuant to aregulation, law or court order (but only to the minimum extent required tocomply with such regulation or order and with advance notice to the DisclosingParty). For the avoidance of doubt, aggregated and anonymized dataderived in connection with this Agreement shall be deemed not to beConfidential Information of Customer. The Receiving Party acknowledges thatdisclosure of Confidential Information would cause substantial harm for whichdamages alone would not be a sufficient remedy, and therefore that upon anysuch disclosure by the Receiving Party the Disclosing Party shall be entitledto appropriate equitable relief in addition to whatever other remedies it mighthave at law. In the event of any conflict between the terms of thisSection 11 and the confidentiality terms contained in any other agreementsbetween the parties, the terms of this Section 11 shall prevail.
12. GENERAL TERMS
12.1. Assignment. This Agreementwill bind and inure to the benefit of each party’s permitted successors andassigns. Neither party may assign this Agreement except upon the advancewritten consent of the other party, except that either party may assign thisAgreement in connection with a merger, reorganization, acquisition or othertransfer of all or substantially all of such party’s assets or votingsecurities. Any attempt to transfer or assign this Agreement except asexpressly authorized under this Section 12.1 will be null and void.
12.2. Severability. If anyprovision of this Agreement shall be adjudged by any court of competentjurisdiction to be unenforceable or invalid, that provision shall be limited tothe minimum extent necessary so that this Agreement shall otherwise remain ineffect.
12.3. Governing Law; Jurisdictionand Venue. This Agreement shall be governed by the laws of the State of Utahand the United States without regard to conflicts of laws provisions thereof. The jurisdiction and venue for actions related to the subject matterhereof shall be the state and United States federal courts located in Salt LakeCity, Utah and both parties hereby submit to the personal jurisdiction of suchcourts.
12.4. Attorneys’ Fees and Costs.The prevailing party in any action to enforce this Agreement will be entitledto recover its attorneys’ fees and costs in connection with such action.
12.5. Notice. Any notice orcommunication required or permitted under this Agreement shall be in writing tothe parties at their respective addresses of record or at such other address asmay be given in writing by either party to the other in accordance with thisSection and shall be deemed to have been received by the addressee (i) if givenby hand, immediately upon receipt; (ii) if given by overnight courier service,the first business day following dispatch or (iii) if given by registered orcertified mail, postage prepaid and return receipt requested, the secondbusiness day after such notice is deposited in the mail.
12.6. Amendments; Waivers. Paramify may update this Agreement: (1) to reflectchanges in the Products (e.g. new services, features, technologies, pricing, orbenefits), (2) for legal, regulatory, or security reasons, or (3) to preventabuse or harm. If Paramify materially change this Agreement, Paramify willprovide reasonable advance notice and the opportunity to review the changes,except (1) when Paramify launches a new service or feature, or (2) in urgentsituations, such as preventing ongoing abuse or responding to legalrequirements. No waiver will be implied from conduct or failure toenforce or exercise rights under this Agreement, nor will any waiver beeffective unless in a writing signed by a duly authorized representative onbehalf of the party claimed to have waived. No provision of any purchaseorder or other business form employed by Customer will supersede the terms andconditions of this Agreement, and any such document relating to this Agreementshall be for administrative purposes only and shall have no legal effect.
12.7. Third Party Beneficiaries.Except as expressly set forth in this Agreement, no provisions of thisAgreement are intended nor will be interpreted to provide or create any thirdparty beneficiary rights or any other rights of any kind in any other party.
12.8. Feedback. If Customerprovides Paramify with any feedback or suggestions regarding the Product(“Feedback”), Customer hereby assign to Paramify all rights in such Feedbackand agree that Paramify shall have the right to use and fully exploit such Feedbackand related information in any manner Paramify deems appropriate. Paramify will treat any Feedback provided by Customer as non-confidentialand non-proprietary.
12.9. Publicity; References.Provided that Paramify complies with trademark usage requirements notified toit by Customer, Paramify may refer to Customer (including on its website and inits related marketing materials and communications) as one of Paramify’scustomers and may use Customer’s logo as part of such reference(s). Upon priorwritten notice to Customer, Paramify may issue a press release announcing therelationship between Paramify and Customer.
12.10. Entire Agreement. ThisAgreement is the complete and exclusive statement of the mutual understandingof the parties and supersedes and cancels all previous written and oralagreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Product is an on-line, subscription-basedproduct, and that in order to provide improved customer experience Paramify maymake changes to the Product. All exhibits to this Agreement are a part ofthis Agreement.
12.11. Force Majeure. Neitherparty shall be liable to the other for any delay or failure to perform anyobligation under this Agreement (except for a failure to pay fees) if the delayor failure is due to unforeseen events which occur after the signing of thisAgreement and which are beyond the reasonable control of such party, such as astrike, blockade, war, act of terrorism, riot, pandemics, quarantines, naturaldisaster, failure or diminishment of power or telecommunications or datanetworks or services, or refusal of a license by a government agency.
12.12. Independent Contractors. Theparties to this Agreement are independent contractors. There is no relationshipof partnership, joint venture, employment, franchise or agency created herebybetween the parties. Neither party will have the power to bind the other orincur obligations on the other party’s behalf without the other party’s priorwritten consent.