End User License Agreement
IMPORTANT! BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS END-USER LICENSE AGREEMENT (“AGREEMENT”).
THIS AGREEMENT GOVERNS CUSTOMER’S PURCHASE AND ONGOING USE OF COMPANY’S SERVICES AS DEFINED HEREIN.
“Affiliate”means any person or entity that directly or indirectly controls or is controlled by a party, or with which a party shares common control. A party “controls” another entity when the party, through ownership of the voting stock or other ownership interest of that entity, or by contract or otherwise, has the ability to direct its management.
“Agreement”means this End-User License Agreement.
“Company”/“Primal Cause”/“We”/“Our”means Primal Cause, Inc., and its Affiliates.
“Content”means the audio and visual information, documents, software, products and services contained or made available to Customer in the course of using the Service.
“Customer Data”means any data, information or material provided or submitted by Customer to the Service in the course of using the Service.
“Effective Date”means the date this Agreement is executed by both parties.
“Initial Term”means the initial term specified on the Order Form.
“Intellectual Property Rights”means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Quote” or “Order Form”means the service level and payment terms specified in any exhibits of or addendums to this Agreement.
“Reseller”means an independent contractor or business entity who has signed a reseller agreement with Company to sell licenses of Services to end users.
“Service(s)”means the specific edition of Company’s Software and products, including electronic downloads, CD-Roms, diskettes, associated media, printed materials, and electronic documentation developed, operated, and maintained by Company, accessible via www.salesforce.com or another designated web site or IP address, or ancillary online or offline products and services provided to Customer by Company, to which Customer is being granted access under this Agreement, as described on the Order Form attached hereto as Exhibit A.
“User(s)”means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by salesforce.com or Customer’s Resellers at Customer’s request).
“Technology”means all of Primal Cause’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Primal Cause in providing the Service.
“You” or “Your” or “Customer”means company name with offices at address, town, state zip, which has contracted to purchase licenses to use the Services subject to the conditions of this Agreement.
2. License Grant & Restrictions
The Service is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Service is licensed, not sold. This Agreement grants Customer the following rights:
Company hereby grants Customer a non-exclusive, non-transferable, worldwide right to use the Service, solely for Customer’s own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Customer are reserved by Company and its licensors.
Customer may not access the Service if Customer is a direct competitor of Company, except with Company’s prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a commercial or competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics which are proprietary to the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
Customer may use the Service only for Customer’s internal business purposes and Customer shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws in connection with Customer’s use of the Service; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violate any third party privacy rights in connection with Customer’s use of the Service; (iii) send or store material containing software viruses, worms, Trojan Horses or other harmful computer code, files, scripts, agents or programs in connection with Customer’s use of the Service; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Customer Responsibilities
Customer is responsible for all activity occurring under Customer’s User accounts and shall abide by all applicable local, provincial or state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service, including those related to data privacy, export control, international communications and the transmission of technical or personal data. Customer shall: (i) notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Company immediately and use reasonable efforts to stop immediately any copying or distribution of Content by Customer or Customer’s Users; and (iii) not impersonate another User or provide false identity information to gain access to or use the Service. Customer acknowledges that the Services are subject to U.S. export control laws and regulations and Customer represents that Customer is not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists. Customer represents that Customer is not an individual less than 18 years of age.
4. Intellectual Property Ownership
Company alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Company Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the Company Technology or the Intellectual Property Rights owned by Company. The Company name, the Company logo, and the product names associated with the Service are trademarks of Company or third parties, and no right or license is granted to use them.
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer Data; Company Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections substantially similar to those herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6. Account Information and Data
7. Third Party Interactions
During use of the Service, Customer may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third parties. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between Customer and the applicable third party. Company and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third party. Company does not endorse any sites on the Internet that are linked through the Service. Company provides these links to Customer only as a matter of convenience, and in no event shall Company or its licensors be responsible for any content, products, or other materials on or available from such sites. Company provides the Service to Customer pursuant to the terms and conditions of this Agreement. Customer recognizes, however, that certain third-party providers of ancillary software, hardware or services may require Customer’s agreement to additional or different license or other terms prior to Customer’s use of or access to such software, hardware or services.
8. Charges and Payment of Fees
Customer shall pay all fees or charges to Customer’s account in accordance with the fees, charges, and billing terms in effect with Company or Customer’s Reseller at the time a fee or charge is due and payable. Except to the extent provided in this Agreement, all payment obligations are non-cancelable and all amounts paid are non-refundable. Company reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice, as specified in Section 18 below, to Customer, effective upon the next renewal term in accordance with Section 11 below. In the event that Customer does not cancel as described in Section 11 below, such changes shall become effective at the commencement of the renewal term. Neither party will disclose any pricing terms or other terms of this Agreement to anyone other than its attorneys, accountants, other professional advisors under a duty of confidentiality and Customer’s personnel with a “need to know,” except (a) as required by law, or (b) pursuant to a mutually agreeable press release.
9. Fees and Payment for Purchased Services
Customer agrees to pay Primal Cause the fee indicated in the Quote or Order Form for use of the Service (“Fees”) at the service level specified in the Quote or Order Form. Customer shall be responsible for paying a revised Fee quoted by Primal Cause for a service level above that specified in the Quote or Order Form; provided, however, there shall be no increase in any Fees for existing service levels except upon renewal of the term when permitted under Section 11. Any such new Quote or Order Form shall become an Addendum of this Agreement and shall be governed by the terms and conditions of this Agreement. Except as otherwise specified herein, (i) Fees are quoted and payable in United States dollars, (ii) Fees are based on Services purchased and not actual usage, and (iii) payment obligations are non-cancelable and Fees paid are non-refundable. Fees are based on yearly periods that begin on the Effective Date and each yearly anniversary thereof (“Billing Period”). Fees for User subscriptions added during a yearly period will be prorated for the remaining time of the yearly period in which they were purchased.
Company will invoice Customer for all Services Customer purchases for the Initial Term and any renewal subscription term(s) as set forth in Section 11. Such charges shall be made in advance for the upcoming Billing Period. Customer is responsible for maintaining complete and accurate billing and contact information for the Services.
Company will issue an invoice to Customer on the Subscription Start Date as designated in the Quote or Order Form. All invoices are due to Primal Cause within thirty (30) days after invoice receipt. For invoice and wire transfer payments, Customer agrees to provide Primal Cause with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator/main contact. Customer agrees to notify Primal Cause of any update to this information within 30 days of any change to it in accordance with Section 18, Notices. If the contact information Customer has provided is false or fraudulent, Primal Cause reserves the right to terminate Customer’s access to the Service in addition to any other legal remedies.
Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Fees do not include foreign currency exchange fees in connection with non-U.S. dollar payments or other fees levied by any financial institution such as wire transfer fees for payment of the Service from Customer to the Company (“Bank Fees”). Customer is responsible for paying all Taxes and Bank Fees associated with Customer’s purchases hereunder. If Company has the legal obligation to pay or collect Taxes or pay Bank Fees for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer. Customer shall be exempt from such Taxes if Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on Company’s income, property and employees.
10. Non-Payment and Suspension
In addition to any other rights granted to Company herein, Company reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if Customer’s account becomes delinquent (falls into arrears). Company reserves the right to impose a reconnection fee in the event Customer is suspended and thereafter request access to the Service.
11. Term and Termination
This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If Customer elects to use the Services for a free trial period and does not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period. User subscriptions purchased by Customer commence on the Effective Date, unless a different commencement date is specified in the Order Form, and continue for the subscription term specified in the Order Form.
The term of each User subscription will automatically renew for successive periods equal to the expiring subscription term unless the Customer elects to cancel the renewal by giving the Company written notice at least 30 days before the end of the then-current term. The pricing during any such renewal term shall be the same as that during the prior term unless otherwise specified in the applicable Order Form. Company will invoice Customer for the Fees for the renewal term at the beginning of the renewal term, and such invoice will be payable in accordance with Section 9.
Section 4 (Intellectual Property Ownership), 5 (Confidentiality), 9 (Fees and Payment for Purchased Services), 10 (Non-Payment and Suspension), 13 (Representations & Warranties), 14 (Mutual Indemnification), 15 (Disclaimer of Warranties), 17 (Limitation of Liability), 18 (Notices), 21 (Agreement to Governing Law and Jurisdiction), 22 (Waiver of Jury Trial), and 23 (General Provisions) shall survive any termination or expiration of this Agreement.
12. Termination for Cause
Any breach of Customer’s payment obligations or unauthorized use of the Company Technology or Service will be deemed a material breach of this Agreement. Company, at its sole discretion, may terminate Customer’s password, account or use of the Service if Customer breaches or otherwise fails to comply with this Agreement. Company shall take no such action unless required by law without giving Customer 30 days to cure any such breach.
Upon such termination for cause, Customer shall pay any unpaid fees due after the effective date of termination. In addition, Company may terminate a free account at any time at its sole discretion upon giving Customer not less than ten (10) business days’ notice.
Either party shall have the right to terminate this Agreement by written notice to the other party if the party has materially breached any obligation herein, and where such breach is by its nature curable, such breach remains uncured for a period of thirty (30) days after written notice of such breach is sent to the breaching party.
In the event either party shall (i) be declared bankrupt, become subject to any proceedings relating to its liquidation, reorganization, or insolvency, whether voluntary or involuntary, or for the appointment of a trustee or receiver or similar official, of or for it or any part of its property, or (ii) fail generally or admit in writing its inability to pay its debts as they become due, or (iii) make a general assignment for the benefit of creditors, or (iv) be dissolved or otherwise cease business as an ongoing business entity, then the other party may, upon thirty (30) days prior written notice, terminate this Agreement for cause.
13. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Company represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Company help documentation under normal use and circumstances. Customer represents and warrants that Customer has not falsely identified itself nor provided any false information to gain access to the Service and that Customer’s billing information is correct.
14. Mutual Indemnification
Customer shall indemnify and hold Company, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; or (ii) a claim, which if true, would constitute a violation by Customer of Customer’s representations and warranties in this Agreement; or (iii) a claim arising from the breach by Customer or Customer’s Users of this Agreement, provided in any such case that Company (a) gives written notice of the claim promptly to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally releases Company of all liability and such settlement does not affect Company’s business or Service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled such claim.
Company shall indemnify and hold Customer and Customer’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a patent issued as of the Effective Date, or a trademark of a third party; or (ii) a claim, which if true, would constitute a violation by Company of its representations or warranties in this Agreement; or (iii) a claim arising from breach of this Agreement by Company; provided that Customer (a) promptly gives written notice of the claim to Company; (b) gives Company sole control of the defense and settlement of the claim (provided that Company may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) provide to Company all available information and assistance; and (d) have not compromised or settled such claim. Company shall have no indemnification obligation, and Customer shall indemnify Company pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Customer’s products, service, hardware or business process(s).
15. Disclaimer of Warranties
COMPANY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. COMPANY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COMPANY AND ITS LICENSORS.
16. Internet Delays
COMPANY’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
17. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Company may give notice by means of a general notice on the Service, electronic mail to Customer’s e-mail address on record in Company’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Company’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Customer may give notice to Company (such notice shall be deemed given when received by Company) at any time by any of the following: email sent to [email protected]; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Company at the head office location specified at www.appbuddy.com.
Customer grants Company the right to use Customer’s name, mark and logo on Company’s website, in Company marketing materials, and to identify Customer as a Company Customer; provided, however, that any such use must be pre-approved, such approval not to be unreasonably withheld, in writing by Customer. By separate and mutual agreement of the parties, the Company may partner with Customer in joint marketing efforts, including the development and preparation of white papers and other joint marketing programs. The parties agree to reasonably cooperate in the negotiation of such arrangements if requested by the Company.
20. Technical Support
Support is available for non-trial Users by sending an email to [email protected] Primal Cause will employ reasonable business efforts to provide an initial response within forty-eight (48) hours of a support email being sent to [email protected] or a support case being logged in our internal support database. Primal Cause will employ reasonable business efforts to resolve support issues within a reasonable time. Notwithstanding the foregoing, Primal Cause does not guarantee that support issues will be resolved in a specific period of time or that they will be resolved exactly according to Customer specifications.
Additional support and professional services other than those specified in the Quote or Order Form are not included in this Agreement, are available for purchase from Primal Cause, and shall be governed by a separate professional services agreement.
21. Agreement to Governing Law and Jurisdiction
The Agreement is governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in San Francisco, California, and we each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts. Customer agrees that Customer will not bring or participate in any class action lawsuit against Primal Cause, Inc. or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
22. Waiver of Jury Trial
EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
23. General Provisions
23.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
23.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
23.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
23.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
23.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
23.6. Attorney Fees. Customer shall pay all of Company’s reasonable attorney fees and other relevant costs incurred by Company to collect any fees or charges due Company under this Agreement following Customer’s breach of Section 9 (Fees and Payment for Purchased Services).
23.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, Company shall refund to Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
23.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto, the terms of such exhibit or addendum shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in other order documentation or acknowledgement shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
23.9. Force Majeure. Neither party will be liable for failure to timely perform under this Agreement due to an event beyond the party’s reasonable control, including without limitation, acts of God; acts of terrorism; civil unrest; interference by civil or military authority; war; fires; epidemics; and labor strikes (other than labor strikes with the work force of the delayed party). The party claiming force majeure will notify the other party of the force majeure event, with reasonable detail, and will use commercially reasonable efforts to minimize the delay.