MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (“Agreement”) sets forth the terms and conditions upon which you (“Customer”) agree to purchase a subscription for certain services provided by ServiceRocket Pty Ltd or its affiliate (“Vendor”) as described in the written services proposal referencing this Agreement and executed by the parties (the “Proposal”). This Agreement shall govern your initial subscription as well as any future subscriptions made by you that reference this Agreement and shall be effective as of the date of the latest of the parties’ signatures on the Proposal (the “Effective Date”).
1. VENDOR SERVICES
1.1 Provision of Services. Vendor offers certain online software-as-a-service products (“Vendor Services”) on a subscription basis for a set term (the “Subscription Term”). Vendor also offers Professional Services (as defined in Section 2.1) related to the Vendor Services. Customer agrees to purchase, and Vendor agrees to provide, the Vendor Services and the Professional Services (if any) specified in the Proposal and any related statement of work (“SOW”) on the terms and conditions set forth in this Agreement. This Agreement does not govern the license of any separate software products identified in the Proposal as being provided by Vendor, which products are subject to the terms of the applicable end user license agreement referenced in the Proposal or otherwise provided to Customer.
1.2 Permitted Users. Customer may permit Permitted Users (as defined below) to access and use the Vendor Services in accordance with the terms and conditions of this Agreement and the end user technical documentation provided with the Vendor Services or made available by Vendor online (the “Documentation”) and subject to any scope of use restrictions designated in the applicable Proposal. A “Permitted User” means a unique individual who is authorized by Customer to use a Vendor Service, for whom Customer has purchased a subscription (or in the case of any Vendor Services provided by Vendor without charge, for whom a Vendor Service has been provisioned), and to whom Customer has supplied a user ID and password. Permitted Users may include Customers’ employees, consultants, contractors and agents and Affiliates, as well as third parties with whom Customer transacts business, provided that no such consultant, contractor, agent, Affiliate or third party is a competitor of Vendor and that such use is for the primary benefit of Customer. For purposes hereof, “Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. The Affiliate rights granted in this section shall not apply to any “enterprise wide” licenses unless Affiliate usage is designated in the applicable Proposal.
1.3 Usage Limits. In the case of Vendor Services subject to Monthly Active User pricing (as described in Section 1.10), Customer may permit only the number of Permitted Users specified in the Proposal to access and use the Vendor Services. Permitted Users’ passwords may not be shared with any other individual, and, except as set forth in a Proposal, any Permitted User identification may only be reassigned to a new individual replacing one who will no longer use the Vendor Services. If Customer exceeds a contractual usage limit, Customer agrees to pay any invoice for excess usage.
1.4 Customer Responsibilities. Customer is responsible for assigning user IDs and passwords to its Permitted Users, for any and all actions taken using all Permitted User accounts and passwords and for its and its Permitted Users’ compliance with this Agreement. Customer shall immediately notify Vendor of any unauthorized use of these accounts, breach of security, or loss or theft of user IDs or passwords or any such noncompliance. Customer acknowledges that while the security of Customer’s and its Permitted Users’ accounts will be maintained through the use of passwords, it is possible for these accounts to be accessed by unauthorized third parties via the internet, other network communications, facilities, telephone, or other electronic means. Neither Vendor nor any of its employees, agents, representatives, suppliers or licensors will be liable for unauthorized access (i.e., hacking) of the Vendor Services or the related servers or transmission facilities, premises or equipment, or for unauthorized access to data files, programs, procedures or information thereon, except as otherwise required by applicable law.
1.5 Usage Restrictions. Customer shall not, and shall not permit its Permitted Users, to: (a) rent, lease, copy, distribute, provide access to or sublicense Vendor Services to a third party or use Vendor Services to provide a service to a third-party, except as otherwise expressly provided herein, (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or APIs to any Vendor Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Vendor), (c) copy or modify any Vendor Services (including any Vendor software included in the Vendor Services) or any Documentation, or create any derivative product from any of the foregoing, (d) remove or obscure any product identification, proprietary, copyright or other notices contained in any Vendor Services (including any reports or data printed from any Vendor Services), (e) incorporate the Vendor Services into any other offering (whether software as a service or otherwise), or (f) publicly disseminate information or analysis regarding the performance of Vendor Services.
1.6 Hosting Services. Vendor Services include hosting services (“Hosting Services”) that will be provided in Vendor’s designated hosting facility, and Vendor may update the content, functionality and user interface of the Hosting Services from time to time in its sole discretion and in accordance with this Agreement.
1.7 Internet Access. Customer acknowledges that: (i) usage of the Vendor Services requires internet access, (ii) Customer is solely responsible for obtaining and maintaining, and providing all equipment necessary to obtain and maintain, such internet access, and (iii) Vendor does not control, and is not responsible for, the flow of data to or from Vendor’s network, designated hosting facility and/or other portions of the internet, which depends in large part on the performance of internet services provided or controlled by third parties. Customer agrees that actions or inactions of third parties can impair or disrupt Customer’s connections to the internet (or portions thereof), and that Vendor disclaims any and all liability resulting from or related to any disruption or impairment of internet service caused by any action or inaction of third parties.
1.8 Service Level Agreement. Vendor agrees that the Vendor Services will be available for use in accordance with the terms of the Proposal and Vendor’s Service Level Guide set forth on Vendor’s website, as such Guide may be updated from time to time by Vendor upon written notice to Customer (the “Service Level Agreement” or “SLA”). If the SLA is not met, Customer shall be entitled to a 1 month extension of the Subscription Term at no additional charge; provided that Customer provides written notice to Vendor of such failure no later than 10 days following the event giving rise to the service level failure. This Section 1.8 states Customer's sole and exclusive remedy for failure to meet the SLA.
1.9 Hosting Capacity Limitations. Unless otherwise agreed in writing, Customer is limited to a maximum data storage of 10GB of Customer Data or an additional charge may apply.
1.10 Monthly Active Users of Certain Learndot Platform Services. The Vendor Services listed on Schedule A are priced on the basis of the total number of Permitted Users that access the Vendor Services during any one-month period as described in the applicable Proposal. For purposes of this Agreement and any applicable Proposal, the term “Monthly Active Users” shall mean the total number of unique Permitted Users that access and use the applicable Vendor Services during the relevant calendar month.
2. ADDITIONAL PROFESSIONAL SERVICES. Vendor agrees to provide the professional consulting services (“Professional Services”), if any, identified in the Proposal and the related SOW. Unless Professional Services are provided on a fixed-fee basis, Customer shall pay Vendor at the per-hour rates set forth in the Proposal (or, if not specified, at Vendor’s then-standard rates) for any excess services. Customer will reimburse Vendor for reasonable travel and lodging expenses as incurred. Any deliverables (“Deliverables”) identified in the SOW will be considered accepted by Customer (a) when Customer provides Vendor written notice of acceptance or (b) 10 days after delivery, if Customer has not first provided Vendor with written notice of rejection (“Acceptance”). Customer may reject a Deliverable only in the event that it materially deviates from its specifications listed in the applicable SoW and only via written notice setting forth the nature of such deviation. In the event of such rejection, Vendor will use reasonable efforts to promptly correct the deviation and redeliver the Deliverable to Customer. After redelivery pursuant to the previous sentence, the parties will again follow the acceptance procedures set forth in this Section until acceptance occurs, or, where applicable, Customer elects to terminate this Agreement pursuant to Section 6. Upon Acceptance, each Deliverable will constitute an element of the Vendor Services, and Vendor shall retain all right, title and interest (including all intellectual property rights) in and to the Deliverables, including any ideas, concepts, techniques, work product, software code or other intellectual property and any derivative, enhancement or modification thereof created by Vendor (or its agents).
3. CUSTOMER DATA
3.1 Generally. “Customer Data” means any data, information, text, images, audio, video or other content of any type transferred by Customer, or any Permitted Users, to Vendor in connection with providing the Vendor Services, including without limitation information which is input to, or transferred to Vendor for inputting into, Vendor Services.
3.3. Data Privacy. Each of the parties represents, warrants and covenants to the other party that it is, and during the Subscription Term will be, in compliance with the EU-U.S. Privacy Shield framework or alternatively any other equivalent framework approved by decision of the European Commission to provide adequate protection for data transfers from the EU to the U.S.
3.4 Rights in Customer Data. As between the parties, Customer retains all right, title and interest (including any and all intellectual property rights) in and to the Customer Data. Customer represents and warrants to Vendor that Customer and its Permitted Users have sufficient rights in the Customer Data to authorize Vendor to store, process, transfer, distribute and display the Customer Data as contemplated by this Agreement and the functionality of the Vendor Services, and that the Customer Data does not infringe the rights of any third party. Subject to the terms of this Agreement, Customer hereby grants to Vendor a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide Vendor Services. Upon request by Customer made within 30 days after the effective date of termination of this Agreement, Vendor will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. After such 30-day period, Vendor shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in Vendor’s systems or otherwise in Vendor’s possession or under Vendor’s control. Notwithstanding anything else to the contrary, Customer agrees that Vendor may use and reproduce aggregate anonymized Customer Data (“Trend Data”) provided that Trend Data: (a) does not contain any personally identifying information; and (b) does not identify Customer or any particular user in any way.
3.5 Uploads of Customer Data. Customer shall be responsible for providing all Customer Data to Vendor and shall provide such Customer Data in a format consistent with the technical compatibility requirements set forth in the Proposal (or as otherwise specified by Vendor) (“Technical Requirements”). Errors in loading Customer Data onto Vendor systems due to defective media, erroneous data or failure to meet Technical Requirements shall be the responsibility of Customer, and Vendor shall have no responsibility for any related impact on the applicable service.
4. OWNERSHIP. This is a subscription agreement for use of Vendor Services and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to use the Vendor Services and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise, and Customer agrees that Vendor or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Vendor Services, Service Descriptions, Documentation, Professional Services deliverables 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, “Vendor Technology”). Further, Customer acknowledges that the Vendor Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any Vendor product or service offerings.
5. FEES & PAYMENT TERMS. All fees owing by Customer are set forth in the applicable Proposal and shall be paid by Customer within 30 days of the effective date of the applicable Proposal, unless otherwise specified in the applicable Proposal and except as set forth below with respect to Active Monthly User fees. Except as expressly set forth in Section 7 (Limited Warranty), all fees are non-refundable. Vendor’s fees are exclusive of all shipping costs and Customer is required to pay any sales, use GST, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Vendor. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. Vendor reserves the right to increase Customer’s fees on no less than 30 days prior written notification to Customer. For Vendor Services that are subject to Monthly Active User pricing, Vendor will invoice Customer at the end of each calendar quarter for any actual Monthly Active User usage occurring during the preceding three (3) calendar months that exceeds the contractual Monthly Active User limit specified in the Proposal. Each such invoice shall be due and payable by Customer in 30 days. Each quarterly invoice shall be based on data captured in Monthly Active User reports. These reports run on the first day of the month, record Customer’s usage levels for the prior month and is made available to the customer by Vendor.
6. TERM AND TERMINATION
6.1 Term. This Agreement is effective as of the Effective Date and, unless otherwise specified in the applicable Proposal, each Subscription Term shall automatically renew for additional twelve-month periods unless either party gives the other written notice of termination at least 30 days prior to expiration of the then-current Subscription Term.
6.2 Termination for Cause. Either party may terminate this Agreement (including all related Proposals) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within 30 days after written notice; (b) ceases operation without successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within 60 days thereafter).
6.3 Effect of Termination. Upon any termination of this Agreement, Customer shall immediately cease any and all use of and access to the Vendor Services (including any and all related Vendor Technology) and delete (or, at Vendor’s request, return) any and all copies of the Documentation, any Vendor passwords or access codes and any other Vendor Confidential Information or Vendor property in its possession. Customer acknowledges that following termination, except as set forth in Section 3.4, it shall have no further access to any Customer Data input into the Vendor Services, and that Vendor may delete any such data at any time. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
6.4 Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.4 (Customer Responsibilities), 1.4 (Usage Restrictions) 3.2 (Compliance), 3.3 (Data Privacy), 3.4 (Rights in Customer Data), 4 (Ownership), 5 (Fees and Payment Terms), 6 (Term and Termination), 7 (Limited Warranty), 8 (Limitation of Remedies and Damages), 9 (Indemnification), 10 (Confidential Information), and 12 (General Terms).
7. LIMITED WARRANTY
7.1 Limited Warranty. Vendor warrants, for Customer’s benefit only, that the Vendor Services will operate in substantial conformity with the applicable Documentation, and that any Professional Services provided pursuant to Section 2 will be provided with due care, skill and judgment, in a professional manner, and in accordance with the specifications set forth in the SOW. Vendor does not warrant that Customer’s use of the Vendor Services will be uninterrupted, secure or error-free, nor does Vendor warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Vendor’s sole liability (and Customer’s sole and exclusive remedy) for any breach of the warranties set forth in this Section 7.1 shall be, in Vendor’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or, if Vendor determines such remedies to be impracticable, to allow Customer to terminate this Agreement and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Vendor Services or related services it has not received as of the date of the warranty claim, or for any affected Professional Services. The limited warranty set forth in this Section 7.1 shall not apply: (i) unless Customer makes a claim within 30 days of the date on which the condition giving rise 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) if Customer’s use is on a no-charge or evaluation basis.
7.2 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1, ALL SERVICES PROVIDED BY VENDOR, INCLUDING THE VENDOR SERVICES AND PROFESSIONAL SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND NEITHER VENDOR NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, AND IF AND TO THE EXTENT ANY WARRANTIES CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED UNDER APPLICABLE LAW, VENDOR’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN RESPECT OF ANY CLAIM UNDER SUCH WARRANTY, SHALL BE, AT THE OPTION OF VENDOR, SUPPLYING THE AFFECTED SERVICES AGAIN OR REFUNDING TO CUSTOMER ALL AMOUNTS PAID BY CUSTOMER FOR THE AFFECTED SERVICES FOR THE PERIOD DURING WHICH THE SERVICES WERE AFFECTED. VENDOR SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE CONTROL OF VENDOR, OR CAUSED BY THIRD PARTIES, INCLUDING ANY THIRD PARTY HOSTING SYSTEMS OR SERVICES.
8. LIMITATION OF REMEDIES AND DAMAGES
8.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, VENDOR’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER FOR ALL CLAIMS MADE AGAINST VENDOR RELATING TO OR ARISING IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO VENDOR DURING THE TWELVE MONTH PERIOD PRECEDING THE MONTH IN WHICH THE FIRST EVENT GIVING RISE TO SUCH CLAIMS OCCURRED.
8.3 THIS SECTION 8 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “USAGE RESTRICTIONS,” “CUSTOMER DATA” OR “CONFIDENTIAL INFORMATION”.
8.4 The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9.1 Vendor Indemnification. Vendor shall indemnify, defend and hold harmless Customer, its licensors and its affiliates, officers, directors, employees, and agents from and against all third party claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any breach or violation by Vendor of any terms of this Agreement, provided that Vendor shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Vendor to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. [If Customer’s use of any Vendor Product is, or in Vendor’s opinion is likely to be, enjoined due to a claim of infringement, or if required by settlement, Vendor may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using Vendor Services; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term which was paid by Customer but not rendered by Vendor. The foregoing indemnification obligations of Vendor shall not apply: (1) if a Vendor Product is modified by any party other than Vendor, but solely to the extent the alleged infringement is caused by such modification; (2) a Vendor Product is combined with other non-Vendor products or processes not authorized by Vendor, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of Vendor Services; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within Vendor Services. THIS SECTION 9 SETS FORTH VENDOR’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.]
10. CONFIDENTIAL INFORMATION
10.1 Confidentiality. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Vendor Technology, performance information relating to the Vendor Services, and the terms and conditions of this Agreement shall be deemed Confidential Information of Vendor without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
10.2 Trade Secrets. Customer acknowledges that use of Vendor Services will expose Customer to proprietary methodologies, formulae, presentations, user interfaces, and other trade secret materials and Confidential Information of Vendor. During the term of this Agreement and for a period of one year following the termination thereof, Customer shall not (directly or indirectly) create or develop any learning management system or related application that is similar to or competes with the Vendor Services.
At the request of Vendor, Customer agrees to the issuance of a joint press release ("Press Release”) on a mutually agreed upon date. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Vendor Services to other potential customers and use of Customer’s name and logo on Vendor’s web site and in Vendor promotional materials. Customer agrees that Vendor may disclose that Customer is a customer of Vendor.
12. GENERAL TERMS
12.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that Vendor may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.
12.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.3 Governing Law. This Agreement is governed by the laws of New South Wales, Australia for Customers whose principal place of business is located outside of the United States of America and in such case the parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia. For Customers whose principal place of business is located within the United States of America, this Agreement shall be governed by the laws of California, USA and in such case the parties submit to the non-exclusive jurisdiction of the courts of Santa Clara County, California.
12.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
12.5 Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Proposal or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
12.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
12.8 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
12.9 Subcontractors. Vendor may use the services of subcontractors for performance of services under this Agreement, provided that Vendor remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of Vendor Services as required under this Agreement.
12.10 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.