Master Subscription License Agreement

PLEASE READ THIS MASTER SUBSCRIPTION LICENSE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE PURCHASING AND/OR USING SOFTWARE OR SOFTWARE SERVICES FROM DEQUE. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND DEQUE. THIS AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF SOFTWARE AND SOFTWARE SERVICES FROM DEQUE. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. BY ACCEPTING THIS AGREEMENT BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE OR SOFTWARE SERVICES.

This Agreement was last updated on June 11, 2021. It is effective between Customer and Deque as of the date of Customer’s accepting this Agreement (the “Effective Date”).

1. DEFINITIONS.

1.1 “Affiliate” means with respect to each party, any entity that directly or indirectly controls, is controlled by, or is under common control with, such party. Affiliates includes Deque subsidiaries.

1.2 “Applicable Laws” means all federal, state, and local laws, and other official releases of any Governmental Authority, in each case as amended, consolidated, supplemented, or replaced from time to time.

1.3 “Authorized Users” means employees, contractors, outsourcers, representatives, agents and consultants of Customer and its’ Affiliates who are authorized by Customer to use the Software on Customer’s behalf under this Agreement and have been supplied user identifications and passwords by Customer or by Deque at Customer’s request.

1.4 “Authorized User License” means a license tied to a specific Permitted Number of Authorized Users so that the Software may only be used by that Permitted Number of Authorized Users.

1.5 “Base Fee” means the base license fee for applicable Software, if included in the applicable Order Form.

1.6 “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.

1.7 “Customer Data” means data, information or material uploaded or routed to the Software, transmitted using the Software or otherwise provided to Deque in any medium by Customer or third parties, together with any derivative works made therefrom. Customer Data does not include Usage Data.

1.8 “Deque” means Deque Systems, Inc., a Commonwealth of Virginia corporation having its principal place of business at 381 Elden Street, Suite 2000, Herndon, VA 20170 and its Affiliates.

1.9 “Documentation” means end user manuals which Deque provides in electronic format referencing specific Software that describe the functions and features of the specific Software or Customer premise installation requirements.

1.10 “Domain” means an Internet domain, i.e., all addressable URLs having the same letters and numbers to the left of the period adjacent to the top-level domain and after any period that precedes the period adjacent to the top-level domain which are owned by Customer and which ownership can be verified by internet tools (ex. “whois”). For example, (a) “domainname.com” and “domainname.net” are separate Domains and (b) “domainname.com” and “mail.domainname.com” are parts of the same Domain.

1.11 “Governmental Authority” means any federal, state, and local government with authority to bind Customer or Deque at law.

1.12 “License Type” means a type of license specified by Deque for applicable Software, as set forth in the Order Form. License Type includes the terms specified by Deque for each type of license, including the applicable terms set forth in this Agreement and the Order Form.

1.13 “Open Source Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.

1.14 “Order Form” means the initial ordering document or online order that is entered into between Customer and Deque and describes the Software and Start-Up Services and specifies restrictions on the use of the Software, including License Type, and the fees therefor (including any applicable Base Fee and any fees based on Permitted Numbers). The term “Order Form” shall include any subsequent ordering document or online order for Software or Software Services signed by the parties specifically referencing this Agreement.

1.15 “Pages” means the applicable license permits analysis by the Software of the number of unique web pages (electronic content having its own URL) stated above. A page is not “unique” if it contains content identical to another web page in the same Domain or if the page resides on a non-production server when a production version of the page is active and available on a production server.

1.16 “Permitted Number” means a maximum number (e.g., number of Authorized Users, number of Domains, Pages, computers, sessions, etc.) applicable to a license of the Software and to the License Type associated with such license. Such number is determined by Deque and, if applicable, will be specified in the Order Form.

1.17 “Restricted Data” means personal information of, or about, Customer’s customers or personnel with respect to which applicable law or a third-party contract provides a remedy for misappropriation or unauthorized disclosure or use. The term includes, but is not limited to, nonpublic personal information (as that term is defined by the Financial Services Modernization Act of 1999), protected health information (as that term is defined by the Health Insurance Portability and Accountability Act of 1996), and information that would give rise to a notice obligation under any state or federal data breach notification law (such as, but not exclusively, Cal. Civ. Code § 1798.82) if it were misappropriated.

1.18 “Software” means specific software products listed on the Order Form that are licensed to Customer by Deque hereunder.

1.19 “Software Services” means Hosting, Start-Up Services and Support and Maintenance Services directly related to the use of the Software licensed hereunder.

1.20 “Start-Up Services” means the implementation, configuration and training services contained in Exhibit A-1 to the initial Order Form and provided by Deque to assist Customer in the setup and use of the Software.

1.21 “Support and Maintenance Services” means the services included with the subscription Software and described on the initial Order Form.

1.22 “Tax” or “Taxes” means all sales, use, value-added, excise, or similar transaction taxes or duties, together with any penalties, fines, charges, or interest thereon, imposed by any domestic or foreign taxing authority on or with respect to the sale of any services or materials in connection with the performance of this Agreement. Taxes shall not include any taxes, fees, levies, or other charges based on or measured by Deque’s gross or net income, gross receipts, excess profits, net worth, or capital.

1.23 “Usage Data” means information related to Customer’s and its Authorized User’s usage of the Software or that pertains to the technical and operational functionality of the Software and includes information to establish the conformance of Customer’s and its Authorized User’s usage of the software with this Agreement. Usage Data does not include Customer Data or Restricted Data.

1.24 “Usage License” means a metered license tied to a specific Permitted Number of Customer Domains, Pages or other metrics specified on the Order Form, so that the Software may only be used to analyze that Permitted Number of Domains or Pages or use that Permitted Number of another metric.

2. LICENSE GRANT

2.1 Deque Responsibilities. During the Term of this Agreement, Deque agrees to license, maintain, and support the Software and make them available to Customer via the Internet or other data transmission system, pursuant to the terms and conditions of this Agreement and the applicable Order Form. Deque also agrees to host the Software if requested by Customer. The terms and conditions of an Order Form shall, with respect to such Order Form, prevail over any conflicting terms and conditions of this Agreement.

2.2 Grant of License and Access. Deque grants to Customer and its Authorized Users, the non-exclusive, non-refundable, non-transferable right to install, access, and use the Software as expressly stated in the Order Form on Customer owned Domains only, in each case within the scope of the License Type and Permitted Number specified in the Order Form, and in accordance with the other restrictions in this Agreement. Customer and its Authorized Users may access and use the Software during the Term solely for Customer’s internal business purposes only. The Software is licensed by Deque, not sold. Deque reserves to itself all rights in the Software that are not expressly granted by this Agreement. Customer obtains no right, title, or interest in the Software or any of the associated materials, or any right, title, or interest to any intellectual property rights in the Software, other than as expressly set forth in this Agreement. Title in, and full ownership of, the Software and all materials relating to the Software and supplied to Customer by Deque shall remain in Deque.

2.3 Copy and Use Restrictions

Customer may copy the Software as reasonably necessary for backup, archival or disaster recovery purposes. Customer may reproduce printed Documentation in its entirety for internal use only.

Customer may not, and may not allow any third party to:

Copy any Software except to make a backup that is never used in production when the primary copy of the Software is available to Customer for use;
Decompile, disassemble, decrypt, or reverse engineer the Software or attempt to derive the source code for any part of the Software;
(A) Work around any technical limitations in the Software or attempt to circumvent any License Type restrictions or (B) otherwise utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by Deque in connection with the Software, in each case including, without limitation utilizing any equipment, device, software, or other means to (or designed to) circumvent or remove any means of reporting Usage Data or any tool or technical protection measure provided or made available by Deque for managing, monitoring or controlling Installation of or access to Software;
Encumber any right in the Software in favor of a third party, whether by agreement, operation of law, or otherwise;
Remove from the Software or Documentation any product identification or proprietary rights notices;
Sell, lease, lend, or sublicense the Software or Documentation to any third party;
Use the Software for timesharing or service bureau purposes;
Modify or create derivative works of the software (except that Customer’s code written to published APIs for the Software will not be deemed a derivative work);
Make copies of the Documentation other than as expressly permitted by this Agreement;
Publish or disclose to any third party the results of any benchmark tests or other evaluation performed on the licensed Software which compares the license Software to a competitor software product, without the prior written consent of Deque; or
Otherwise use or copy the Software except as expressly provided herein.

2.4 User Access. Where applicable, Deque will deliver to Customer all user IDs and passwords necessary for Customer to access the Software in accordance with this Agreement. User subscriptions cannot be shared or used by more than one Authorized User but may be reassigned by Customer. Any additional Authorized User Licenses added during the Term shall be coterminous with the then current subscription Term, and the fee for the additional Authorized User subscriptions shall be the same as that for the pre-existing subscriptions, prorated if necessary, for the remainder of the Term.

2.5 Customer Responsibilities. Customer agrees to provide Deque with all cooperation and information reasonably necessary or desirable to implement the Software for Customer. Customer shall be solely responsible for providing, maintaining, and ensuring compatibility with the Software, including securing Internet access connections. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Software. Customer will be responsible for compliance with this Agreement by all of Customer’s personnel and any other persons who may have access to the Software through Customer (whether or not such access is authorized by Deque or within the scope of the applicable License Type and Permitted Number).

2.6 Customer Data. Customer warrants and represents that it owns all right, title and interest in and to the Customer Data, or possesses or will possess all legally valid rights in the Customer Data. Customer is solely responsible for the accuracy, quality, integrity, reliability, and appropriateness of the Customer Data. Customer Data is and shall remain the sole property of Customer. Unless otherwise specifically stated in the Order Form, Customer Data is deemed to be the Confidential Information of Customer. During the Term of this Agreement, Customer grants to Deque a limited, non-exclusive, non-sub-licensable, non-transferable license to capture, copy, store, transmit, maintain, access, and display the Customer Data solely to the extent necessary to provide the Subscription Services to Customer and otherwise exercise its rights and perform its obligations under this Agreement. Deque may not use the Customer Data for any other purpose.

2.7 Usage Data. Deque may use, retain, and reproduce any Usage Data, during and after the Term, to assist Deque in the diagnosis or correction of services performed, preparation of billing statements, the evaluation of its software or services, or any improvements, upgrades or enhancements to the Software or its other products or services, or the compilation of statistical or performance information, or that is in aggregated, anonymous format (i.e., so that (a) Customer cannot be identified as the source of the Usage Data, and (b) Deque does not identify Customer as a source of the Usage Data).

2.8 Backups. If the Software is provided as a service (“SaaS”), Deque will (i) maintain the security and integrity of the Customer Data and will inform Customer of any third party who requests or obtains access to the Customer Data (ii) backing up the Customer Data on schedule and (iii) back up the Customer data upon termination or expiration of this Agreement for any reason. Deque will maintain daily backups of Customer Data for a period of 7 days. In addition, Deque will keep all pre-and post-backup instances for a period of 90 days, except for the most recent pre-Upgrade backup and post Upgrade backup of each SaaS Instance which will be maintained for a period of 180 days. Upon Customer’s written request, Deque will return or destroy the Customer Data.

2.9 Open-Source Software. The Software as documented on the Order Form may contain Open-Source Software components. Such Open-Source Software is provided to Customer in compliance with the applicable Open-Source license and shall not require Customer to execute additional documentation prior to the utilization of the Software provided hereunder by Deque. Deque shall maintain compliance with any associated license agreements pertaining to such Open-Source Software.

2.10 Reporting; Audit and Enforcement Rights.

Usage Data Reporting. For all Software that is licensed pursuant to a Usage License, when installed, the Software may, from time to time, automatically report back Usage Data to Deque’s servers without notice to Customer or an Authorized User. The parties will work together, subject to Customer’s security requirements, so that Customer provides Deque with reasonable access to Customer’s system facilities including, but not limited to, a secure connection to Customer’s principal server, to establish data feeds from the Software that provide complete, accurate, and timely Usage Data to Deque in accordance with this Agreement. The parties may agree in an Order Form upon an alternative method and frequency for Customer to provide complete, accurate and timely Usage Data directly to Deque.
Parties’ Usage Data Responsibilities. Customer represents and warrants that all Usage Data provided directly by Customer to Deque will be complete, accurate and timely and that Customer will not cause any Usage Data or any method of reporting Usage Data to Deque to fail to be complete, accurate and timely. Deque will not use its access to Customer systems pursuant to this Section 2.10 for any purpose other than gathering Usage Data. Subject to the obligation to treat Usage Data as Customer’s Confidential Information, in addition to verification for fees due under this Agreement, Deque may use Usage Data for any legally permitted purposes, including helping diagnose and resolve technical and performance issues in relation to the Software, improving the Software, developing metrics and analytic algorithms, or developing additional use cases for the Software.
Usage License Fees. The Software fees with respect to a Usage License in an Order Form for an Initial Term are based on the parties’ estimate of the applicable Permitted Number as of the Effective Date. If Customer exceeds the Permitted Number with respect to a Usage License at any time during the Term, then the parties shall negotiate and agree upon an appropriate change order with respect to the Customer’s license for the remainder of the applicable annual subscription period, and upon the next annual renewal of the applicable subscription, Customer shall automatically move into the next higher Permitted Number category and the applicable subscription fees will be increased accordingly for the renewal term.
Verification. Deque may, or may require Customer to provide evidence to, validate Customer’s compliance with the terms of this Agreement (including the Order Form) and all Authorized Users’ access to the Software contained on an Order Form If the audit reveals that Customer has exceeded any Permitted Number with respect to any license, except as otherwise described in subsection (c), Deque reserves the right to cause the increased fees to apply during the current subscription term, and invoice Customer for the additional license access retroactively and Deque will increase the number of licenses or Permitted Numbers on the upcoming renewal and adjust the applicable subscription fees accordingly.
Audit Rights. Without limiting the foregoing, upon Deque’s written request at any time during the Term, Customer shall provide to Deque a signed certification (i) verifying the Software is being used in accordance with the terms of this Agreement; and (ii) listing the locations in which the Software is run, number of users, number of CPUs, and any other information reasonably requested by Deque. Deque may, at Deque’s expense and not more than once annually, audit Customer’s use of the Software and compliance with this Agreement. The audit will be conducted during business hours and will not unreasonably interfere with Customer’s business activities. Customer shall provide Deque or its auditor with all reasonable information and assistance (including copies of related software) required to enable Deque to determine whether Customer is in compliance with this Agreement. If the audit reveals that Customer has underpaid fees to Deque, except as otherwise provided in this Section 2.10, Customer will be invoiced for the underpaid fees based upon Deque’s price list at the time the fees would have otherwise been incurred, together with interest at a rate of one and one-half percent (1.5%) per month or partial month until paid. If the audit reveals that Customer has underpaid fees totaling five percent (5%) or more of the fees due in any year, Customer shall reimburse Deque for all reasonable expenses associated with the audit.

3. SOFTWARE SERVICES

3.1 SaaS. If the Software is being provided as a service (SaaS), subject to the terms and conditions of this Agreement, Deque shall provide the Software during the Term of this Agreement on a 24/7 basis according to the service levels set forth in the applicable Order Form, it being understood that the Software may be inaccessible or inoperable from time to time for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Deque may undertake from time to time; or (iii) causes beyond the control of Deque or which are not reasonably foreseeable by Deque, including, without limitation, interruption or failure of telecommunication or digital transmission links, delays or failures due to Customer’s Internet access connections, hostile network attacks, network congestion or other Force Majeure Events (defined in Section 12 of this Agreement). Customer agrees that Deque has no control over the stability and throughput speed of the Internet or other data transmission systems used by Customer.

3.2 Start-Up Services. Start-Up Services shall include implementation, configuration and training as more fully described on Exhibit A-1 to the initial Order Form and will be governed by the terms of this Agreement. Other professional services not referenced herein will be considered out of the scope of this Agreement and shall be governed under a separate consulting services agreement and statement of work. For avoidance of doubt, Axe DevTools Pro does not require Start-Up Services.

3.3 Support and Maintenance Services. Deque shall provide the Support and Maintenance Services for the licensed Software in accordance with the Service Levels and as described in the applicable Order Form, for the Initial Term or any Renewal Term therein.

4. RESTRICTED DATA.

Deque’s Software and Software Services under this Agreement do not require that Deque possess or use Restricted Data. Customer will not make available to Deque any Restricted Data and Customer will prevent Deque from being exposed to any Restricted Data. Notwithstanding anything else in this Agreement or otherwise to the contrary, except with respect to Restricted Data that Deque intentionally misappropriates from Customer, Deque’s obligations and liability with respect to Restricted Data will be limited to the ordinary care due information inadvertently received that is not Restricted Data.

5. RELATIONSHIP OF THE PARTIES.

Deque shall furnish all Software Services as an independent contractor. All personnel utilized by Deque in the furnishing of the Software Services shall be employees of Deque and under no circumstances shall be deemed employees of Customer. Deque shall be fully responsible for all acts and omissions of such personnel. Deque shall bear sole responsibility for payment of compensation to its personnel. Deque shall withhold (if applicable), pay and report, for all personnel assigned to the Start-Up Services, federal, state, and local income tax withholding, social security taxes, employment head taxes, unemployment insurance, and any other taxes or charges applicable to such personnel as employees of Deque. Deque shall bear sole responsibility for any health or disability benefits, retirement benefits, or welfare, pension, or other benefits (if any) to which such personnel may be entitled. Deque agrees to defend, indemnify, and hold harmless Customer, Customer’s officers, directors, employees and agents, any benefit plan sponsored by Customer, and any fiduciaries or administrators of any such benefit plan, from and against any claims, liabilities, or expenses relating to any claim by Deque’s personnel for compensation, tax, insurance, or benefits from Customer or any benefit plan sponsored by Customer.

6. TERM.

6.1 Agreement. This Agreement will commence on the Effective Date and remain in full force and effect until terminated by either party in accordance with Section 9 herein.

6.2 Order Form. Unless this Agreement or an Order Form is terminated earlier in accordance with the terms set forth herein, the term of an Order Form (the “Initial Term”) shall commence on the 1^stday of the month following the Effective Date and shall continue for 12 months or such other term as designated on the Order Form. Following the Initial Term and unless otherwise terminated as provided for in this Agreement, an Order Form shall automatically renew for a successive 12-month period (each a “Renewal Term”) until such time as a party provides the other with written notice of termination provided, however, that (a) such notice is given no fewer than sixty (60) calendar days prior to the last day of the then current term; and, (b) any such termination shall be effective as of the date that would have been the first day of the next Renewal Term. The Initial Term, together with all Renewal Terms, is collectively referred to as the “Term”.

7. INVOICING AND PAYMENT.

7.1 Fees. Deque’s fees for the Software are set forth in the applicable Order Form(s). All prices are stated in United States dollars. Pricing is exclusive of any sales taxes or similar transaction-based taxes that Deque is legally required to collect. To the extent that any fee schedule under an Order Form extends beyond the Initial Term, with 60 days prior notice to the end of the then current Term, Deque shall be entitled to increase such fees by a percentage equal to the then applicable annual percentage increase in the Consumer Price Index (CPI) or 3%, whichever is greater. CPI shall mean the Consumer Price Index for all Urban Consumers All Cities Average, published by the Bureau of Labor Statistics, United States Department of Labor.

7.2 Invoicing. Deque shall submit all invoices electronically to the email address identified on the Order Form. Each invoice shall include a detailed description of Software and/or Software Services rendered to Customer. Deque shall not be responsible for any fees related to Client’s use of Ariba or any other third-party portal for the receipt and processing of invoices.

7.3 Payments. Unless otherwise stated in the Order Form, charges invoiced to Customer by Deque shall be payable by Customer via check or ACH within thirty (30) days of Customer’s receipt of each undisputed invoice. If payments are made via credit card, Customer shall be assessed a 4% processing fee. Any applicable fees or charges for the bank transfer (ACH) shall be paid by the Customer in their integrity. Otherwise, the payment is deemed incomplete and the Customer shall bear all costs incurred for invoicing the remainder. Deque shall not be responsible for any fees related to Client’s use of Ariba or any other third-party portal for the receipt and processing of invoices. If Customer disputes the charges contained in an invoice issued pursuant to this Agreement, Customer shall, prior to the payment due date of such invoice, notify Deque of the dispute stating the reasons it believes the disputed amount was improperly invoiced. Customer shall pay the undisputed portion of such invoice by the due date and the parties shall meet within ten (10) days of such notice in-an-effort to resolve the disputed amount. The parties shall continue performing their respective obligations under the Agreement while the dispute is pending. If Customer fails to pay any undisputed amount when due, Deque shall have the right to invoice Customer for late charges of the lesser of 1.5% per month on any undisputed amount past due or the maximum amount allowable under applicable law.

7.4 Expenses. Customer will reimburse Deque for the pre-approved, reasonable, out-of-pocket travel related expenses actually incurred by Deque’s employees in connection with the performance of Deque’s obligations hereunder. All allowable expense reimbursement requests by Deque will be submitted as a separate line item on Deque’s invoice and shall include supporting documentation, if required.

7.5 Books and Records. Deque shall maintain complete and accurate books, records, information, and documentation of Deque’s performance under this Agreement. Deque shall retain such records for a period of three (3) years from the date of completion of the Start-Up Services. Customer, or its designated representatives, will have the right, upon reasonable notice, and during regular business hours, to access and review such books, records, information, and documentation for the purpose of ensuring Deque’s compliance with all terms and conditions of this Agreement.

7.6 Taxes. All fees are exclusive of any Taxes that Deque is legally required to collect. Deque is not subject to VAT, GST or other taxes imposed by a government outside of the United States (“Foreign Tax”). Customer shall be responsible for all such Foreign Tax and shall not reduce any payments to Deque for such Foreign Tax. All applicable United States Taxes will be shown as a separate line item on the applicable invoice. Customer shall be responsible for and shall pay or reimburse Deque for all Taxes. With notice to Deque, Customer may pay such Taxes directly to the taxing authority, where permitted by law. If a claim is made against Deque for Taxes with respect to which Customer is liable for a payment or indemnity hereunder, Deque shall promptly notify Customer of such claim; provided however, that failure to give notice will not relieve Customer of its obligations hereunder, unless and except to the extent that (i) such failure increases the amount for which Customer would have been liable in the absence of such failure, or (ii) such failure results in the imposition of, or an increase in the amount of, any penalties, interest, or other additions to Tax which is the subject of such claim. Customer may, in good faith, with due diligence and at its expense, contest the validity, applicability, or amount of such Taxes. Unless otherwise permitted by law or by agreement of the parties, such contest will be coordinated by Deque, and Deque agrees to make good faith efforts to contest such claim in cooperation with Customer and in accordance with Customer’s reasonable requests and directions. If Deque receives any refund of a Tax for which Customer has provided payment hereunder, Deque shall promptly, but in any event within thirty (30) days of receipt of such refund, remit such refund to Customer, together with any interest refunded on such amount.

8. REPRESENTATIONS AND WARRANTIES.

Deque represents and warrants the following:

It is the owner of the Software or otherwise has the right to grant Customer the rights and license set forth in this Agreement.
The functionality of the Software will not be materially decreased from that available as of the Effective Date;
The Services will be performed by qualified personnel in a thorough and workmanlike manner;
The Software will conform in material respects to the specifications, functions, descriptions, standards, criteria and operate in accordance with the applicable Order Form and any associated Documentation;
The Software will not infringe upon or violate any patent, copyright, trade secret or other proprietary right of any third party;
It will take commercially reasonable efforts to avoid the introduction, into the Software or the Customer Data, any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines designed: to permit access to or use of Customer’s computer systems by Deque or a third party not authorized by this Agreement; to disable, modify, damage or delete the Customer Data and any data, software, computer hardware or other equipment operated or maintained by Customer; or to perform any other such similar actions. Technical limitations with respect to Permitted Numbers or begin and end-dates of annual subscription licenses shall not be considered a breach of this Section 8.

8.1 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, DEQUE PROVIDES THE SOFTWARE AS A STANDARD OFF THE SHELF PRODUCT PROVIDED TO CUSTOMER AS IS.

DEQUE MAKES NO WARRANTY AND EXPRESSLY DISCLAIMS ANY LIABILITY RELATED THERETO, AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SOFTWARE, GOODS OR SERVICES, EXPRESS OR IMPLIED, OTHER THAN THOSE MADE IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

Deque does not represent or warrant that the use of ANY Software, Documentation, or any other good, service, or software provided by Deque will RENDER ANY WEBSITE, GOOD, SERVICE, OR SOFTWARE APPROPRIATE OR compliant FOR USE BY ANY PARTICULAR PERSON FOR ANY PARTICULAR PURPOSE OR with any particular law or regulatory regime.

Under no circumstances may Customer use the Software, Documentation, or any other good, service, or software provided by Deque in connection with any good, service, or software that is to be used for any application where the failure or noncompliance of such good, service, or software is likely to result in personal injury (including, but not limited to, death) or property damage.

The Software operates utilizing the Internet, which is not under the control of Deque and which is inherently insecure. Deque makes no warranties, representations, or guarantees of any kind, express, implied, statutory, or otherwise, oral or written, with respect to the performance or security of the Internet.

9. TERMINATION

9.1 Termination for Cause. In addition to any other remedy available under this Agreement or otherwise, either party may terminate this Agreement (or any Order Form) if the other party breaches any material provision of this Agreement and has not cured the breach within thirty (30) days after receipt of written notice of the breach from the non-breaching party.

9.2 Termination for Insolvency. Either party has the option to terminate this Agreement effective upon delivery of written notice by either party to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party; (ii) upon the making of a general assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party.

9.3 Termination for Convenience. Unless otherwise contained in the Order Form, Customer may terminate this Agreement or any Order Form for its convenience with 60 days prior written notice to Deque. Customer’s sole and exclusive obligation to Deque upon termination under this Section 9.3 shall be the payment of unpaid charges due and payable for Services contained on the Order Form which were properly performed by Deque up to the effective date of termination. In no event will Deque be liable to Customer for any pre-paid fees should Customer terminate an Order Form for convenience during the Term. Deque may terminate this Agreement or any Order Form for its convenience with written notice six (6) months prior to the end of the then current term.

9.4 Non-Renewal. Customer may choose to not renew one (1) or more of the Software products identified in an Order Form by providing written notice to Deque 60 days prior to the end of the current Term.

9.5 Cooperation. During any period after which notice of termination has been given by either party under this Section 9, each party shall continue to fulfill its respective obligations under this Agreement, unless otherwise prohibited by law, and shall cooperate in the orderly wind-down of the parties’ performance of this Agreement.

9.6 Survival. Sections 2, 3, 4, 5, 7-10 and 12-16 shall survive termination or expiration of this Agreement, in addition to any provisions that by their nature should, or by their own express terms do, survive, or extend beyond termination or expiration of this Agreement.

10. INTELLECTUAL PROPERTY INDEMNIFICATION

10.1 Intellectual Property Indemnity.

(a) Deque shall indemnify, defend, and hold Customer harmless from any claim by a third party that the Software infringes any patent, copyright, or trade secret of that third party, provided that:

- Customer notifies Deque in writing within 30 days of the claim; and
- Deque receives reasonable assistance from Customer necessary to perform Deque’s obligations hereunder; and
- Deque has sole control over the defense and all negotiations for a settlement or compromise.

(b) The foregoing obligation of Deque does not apply with respect to Software or portions or components thereof:

- (i) Not supplied by Deque;
- (ii) Used in a manner not expressly authorized by this Agreement
- (iii) Made in accordance with Customer’s specifications;
- if the alleged infringement or misappropriation results from any customizations, modifications, alterations or changes not developed by Deque;
- Combined with other products (hardware or software), processes or materials where the alleged infringement would not exist but for such combination;
- Not the most current Update if infringement would have been avoided by use of the most current Update and Deque makes the same available to Customer;
- Where Customer continues the allegedly infringing activity after being notified thereof and provided modifications that would have avoided the alleged infringement; or
- To the extent that the rights of any third party asserted with regard to the Software arise out of, or are connected with, claims (whether based in patent law or otherwise) to inventions, technologies, or methods that were in widespread unlicensed use by third parties as of the time the Software was delivered to, or used by, Customer or any affiliate of Customer.

(c) In the event that the Software is held by a court of competent jurisdiction to constitute an infringement or the use of the Software is enjoined (or Deque reasonably believes that any of the foregoing are reasonably likely to occur) Deque may, at its option, do one of the following things.

- (i) Procure for Customer the right to continue use of the Software;
- Provide a modification to the Software so that its use becomes non-infringing, which modification Customer must immediately implement;
- Replace the Software with software that is substantially similar in functionality and performance; or
- If none of the foregoing alternatives is reasonably available to Deque, Deque shall refund a pro-rata portion of any fees that were pre-paid.

(d) This Section 10 states Deque’s sole liability and Customer’s exclusive remedy for any claim by a third party that the Software, Documentation, or any other good, service, or software provided by Deque infringes upon, violates, or misappropriates any right of a third party.

10.2 Indemnification Procedure. Each party shall promptly give the other party notice of any Claim or Loss asserted by a third party for which a party seeks indemnity under this Section 10 (each a “Third Party Claim”). Deque shall have sole control over the defense and settlement of Third Party Claims; provided, however, that: (i) the Customer will be entitled to participate in the defense of such Third Party Claim and to employ legal advisers at its own expense to assist in the handling of the Third Party Claim; and (ii) without the Customer’s prior written consent: (1) no compromise or settlement may contain any finding or admission of any violation of law or any violation of the rights of any person by or on behalf of the Customer; (2) no compromise or settlement may give rise to any other claim that may be made against Customer; (3) the sole relief provided in any compromise or settlement shall be monetary damages that are paid in full by Deque; and (4) the compromise or settlement shall include, as an unconditional term, in form and substance reasonably satisfactory to the Customer, the claimant’s or the plaintiff’s release of the Customer from all liability in respect of the Third Party Claim. The Customer will provide reasonable assistance to Deque (at the Deque’s expense), including reasonable assistance from the Customer’s employees, agents, independent contractors, and Affiliates, as applicable.

11. Insurance coverage.

At all times during the Initial Term and any Renewal Term, Deque shall carry and maintain at its own cost and expense the following corporate insurance policies and limitations.

Policy Type	Coverage Limit
Commercial General Liability	$2,000,000.00/each occurrence $4,000,000.00/general aggregate $4,000,000.00/Products –Comp/Op Aggregate
Automobile Liability	$2,000,000.00/combined single limit
Umbrella Liability	$2,000,000.00/each occurrence/aggregate
Workers Compensation	$2,000,000.00/each occurrence/aggregate
Employee Theft – Customer Premises	$1,000,000.00
Professional Liability Technology Errors and Omissions Internet Liability and Privacy Technology Products Liability Multimedia and Advertising Liability Cyber Liability	$3,000,000.00/each claim

12. LIABILITY.

12.1 LIMITATION OF LIABILITY. EXCEPT FOR claims for bodily injury (including loss of life) or GROSS negligence or willful misconduct of either party; infringement of any third party’s intellectual property rights; BREACH BY CUSTOMER OF SECTION 2; or breach by either party of the confidentiality obligations set forth in this Agreement, EACH PARTY’S LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT (INCLUDING ALL ORDER FORMS), WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO DEQUE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO SUCH LIABILITY ARISING.

12.2 LIMITATION OF REMEDIES AND DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS, OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT (INCLUDING ALL ORDER FORMS), WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

DEQUE SHALL NOT BE LIABLE FOR LOSS OF OR DAMAGE TO RECORDS OR DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR ANY MATTER BEYOND ITS REASONABLE CONTROL.

BOTH PARTIES acknowledge and agree that the limitationS IN THIS SECTION 12 AND OTHERWISE IN THIS AGREEMENT are essential elements of the Agreement between the parties and that, in the absence of such limitationS the prices and terms set forth in this Agreement AND THE ORDER FORMS would be substantially different.

13. FORCE MAJEURE.

Neither party will be liable to the other party, nor be deemed to be in default of this Agreement because of, any failure or delay in its performance due under this Agreement not occasioned by or based upon the fault or negligence of the party claiming relief under this Section and caused by unforeseeable acts of God, fire, floods, industry-wide strikes, work-to-rule actions, go-slows or similar labor difficulties, unavailability of equipment, materials, or services, due to industry-wide shortages, terrorist acts, wars, actions by a Governmental Authority, epidemics, pandemics, or any law, order, regulation, ordinance or requirement of any state, federal or international governmental authority, or any political subdivision, department or regulatory agency thereof, including quarantine restrictions, stay-at-home orders, or any requirements or restrictions of a similar nature, or any other similar, unforeseeable cause beyond a party’s reasonable control (collectively, “Force Majeure Events”). The following is a non-exclusive list of circumstances that are not Force Majeure Events: (i) economic hardship; (ii) changes in market conditions; and (iii) insufficiency of funds. The parties agree that Force Majeure Events shall not excuse any payment due from one party to the other.

14. CONFIDENTIALITY.

Confidential Information means any information (a) disclosed by either Party to the other Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, algorithms, business plans, customer data, customer lists, customer names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets or any other information which is designated as “confidential,” “proprietary” or some similar designation (collectively, the “Disclosed Materials”) and (b) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the Disclosed Materials. Information disclosed orally shall be considered Confidential Information. Confidential Information may also include information of a third party that is in the possession of one of the Parties and is disclosed to the other Party under this Agreement.

14.1 Maintenance of Confidentiality. Each party (the “Receiving Party”) shall maintain in strict confidence, and agrees not to disclose to any third party, except as necessary for the performance of this Agreement, as necessary to enforce its rights under this Agreement, or when authorized by the other party (the “The Disclosing Party”) in writing, Confidential Information that the Receiving Party receives from the Disclosing Party or its Affiliates.

14.2 Exclusions. Confidential Information does not include: information that is, or subsequently may become within the knowledge of the public generally through no fault of the Receiving Party; information that the Receiving Party can show was previously known to it as a matter of record at the time of receipt; information that the Receiving Party may subsequently obtain lawfully from a third party who has lawfully obtained the information free of any confidentiality obligations; or information that the Receiving Party may subsequently develop as a matter of record, independently of disclosure by the Disclosing Party.

14.3 Duration of Obligation. The Receiving Party’s confidentiality obligations with respect to Confidential Information shall remain in effect until five (5) years after the termination or expiration of this Agreement; provided that the Receiving Party’s obligations hereunder with respect to Confidential Information consisting of Trade Secrets shall remain in effect for as long as governing law allows.

14.4 Third Party Information. The confidentiality provisions herein apply to and shall also protect Confidential Information of third parties provided by the Disclosing Party to the Receiving Party.

14.5 Court Order. Notwithstanding the foregoing restrictions in this Section 14, the Receiving Party may disclose Confidential Information or Trade Secrets to the extent required by an order of any court or other governmental authority, but only after The Receiving Party has notified the Disclosing Party and the Disclosing Party has had the opportunity, if possible, to obtain reasonable protection for such information in connection with such disclosure.

14.6 Injunctive Relief. The Receiving Party acknowledges that disclosure of any Confidential Information or Trade Secret by it or its employees will give rise to irreparable injury to the Disclosing Party or the owner of such information, not adequately compensated by damages. Accordingly, the Disclosing Party or such other party may seek and obtain injunctive relief against the breach or threatened breach of the undertakings contained herein, in addition to any other legal remedies which may be available, without the requirement of posting bond. The Receiving Party further acknowledges and agrees that the covenants contained herein are necessary for the protection of the Disclosing Party’s legitimate business interests and are reasonable in scope and content.

14.7 Retention. The Receiving Party shall not retain Confidential Information any longer than is reasonably necessary to accomplish the intended purposes for which it was transferred as set forth in this Agreement or applicable Order Form. Upon the earlier termination of this Agreement and the written request of the Disclosing Party, the Receiving Party shall delete and/or destroy all of the Disclosing Party’s Confidential Information in the Receiving Party’s possession, including any copies thereof, and shall deliver a written statement to the Disclosing Party within 15 days of the Disclosing Party’s request confirming that the Receiving Party has done so.

15. COMPLIANCE.

15.1 Compliance with Laws. As applicable to each party’s respective obligations under this Agreement, and notwithstanding anything to the contrary in this Agreement, each party shall comply with and cause each of its employees, agents, and subcontractors to comply with, Applicable Laws, and shall obtain all licenses, permits, permissions and consents which may be required of it by any Governmental Authority.

15.2 U.S. Government Users. The Software and Documentation provided are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §§227.7202-1 through 227.7202-4, 48 C.F.R. §52.227-19 and other relevant sections of the Code of Federal Regulations, as applicable. Deque’s publications, commercial computer software, and commercial computer software documentation are distributed and licensed to United States Government end users only as a Commercial Item and with only those rights as granted to all other end users, according to the terms and conditions contained in the license agreements that accompany the products and software documentation, and the terms and conditions in this Agreement.

15.3 Export Compliance. All materials provided by Deque hereunder shall be delivered to Customer on a F.O.B. (UCC 2-319) shipping point basis, including electronic posting for download. Unless an appropriate license, exemption, or similar authorization has been duly obtained, Customer will not, nor will Customer authorize or permit Customer’s employees, agents, successors, or any other person to, export or re-export the Software, the Documentation, or any services provided under this Agreement to any country identified as a prohibited destination by any applicable laws or regulations. Furthermore, Customer will undertake and perform all ‘denied party screening’ or similar obligations imposed by or arising under applicable laws or regulations. To the extent applicable, the commodities, technology, and/or software delivered under this Agreement will be/were exported from the United States or other country of origin in accordance with the United States Export Administration Regulations or other export regulations applicable in the jurisdiction of origin. Any diversion contrary to United States or other applicable law is prohibited.

16. GENERAL PROVISIONS.

16.1 Interpretation. Interpretation of this Agreement (including the Order Forms) shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires: (b) the word “including” and words of similar import shall mean “including, without limitation;” (c) the headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (d) references to “days” or a “day” shall mean a calendar day, unless otherwise stated; and (e) as this Agreement is the product of negotiations between the parties and their respective counsel, no provision or section of this Agreement shall be construed against either party by reason of ambiguity of language, rule of construction against the draftsman, or similar doctrine.

16.2 Notices. Any notices, requests or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by fax, e-mail or overnight courier, or mailed by United States registered or certified mail, return receipt requested, postage prepaid, and addressed (a) to Deque at its address specified above in this Agreement or, as appropriate, as set forth below and (b) to Customer at its address, email or fax number specified in the initial Order Form. Any such notice, request, or other communication shall be considered given on the date of fax or e-mail delivery, on the third day following the date of deposit in the United States mail as provided above. Rejection or other refusal to accept or inability to deliver because of changed address of which no notice was given shall not affect the validity or the effectiveness of the notice, request, or other communication. Either party may change its mailing address by giving written notice hereunder.

Deque e-mail: general.counsel@deque.com

Deque fax: 703-225-0387

16.3 Governing Law. Except as documented in Section 15.2, this Agreement (including the Order Forms) shall be governed by and construed under the laws of the Commonwealth of Virginia (except the Uniform Computer Information Transactions Act, which will not apply) without regard to the conflicts of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Any suit or other action arising out of, or related to, this Agreement may be brought only in the courts of the Commonwealth of Virginia sitting in Fairfax County, Virginia or in the United States District Court for the Eastern District of Virginia. Each of the parties hereby irrevocably consents to the jurisdiction of, and venue in, such courts.

16.4 Trademarks. Neither party may display or refer to the other party’s proprietary indicia, trademarks, service marks, trade names, logos, symbols and/or brand names (“Marks”) without the advance written approval of that party, which approval may be withheld with or without cause. Each party agrees that it will not assert, directly or indirectly, any right, title, or interest in, or to, the other party’s Marks or register or attempt to register any trademarks, trade names or other proprietary indicia confusingly similar to the Marks of the other party. Neither party grants any rights in the Marks or in any other trademark, trade name, service mark, business name or goodwill of the other except as expressly permitted hereunder or by separate written agreement of the parties. Any use of the other party’s Marks shall inure to the benefit of such other party as owner, and the use of either party’s Marks in conjunction with the other party’s Marks shall not create a unitary or composite mark. Upon expiration or termination of this Agreement for any reason, each party shall immediately discontinue all use of the other party’s Marks and shall not thereafter use any expression in connection with any business in which such party may thereafter be engaged which, in the reasonable judgment of other party so nearly resembles its Marks as may be likely to lead to confusion or uncertainty on the part of the public.

Notwithstanding the above in this Section 16.4, Deque grants to Customer a limited, non-exclusive, non-transferable license to use Deque’s Marks then identified by Deque with respect to Deque’s automated accessibility certification service (each a “Deque Certification Mark”), provided that (A) Customer must obtain Deque’s prior written consent, in each instance, to place and display any Deque Certification Mark on its publicly-facing digital asset(s), and (B) any accessibility statement posted on Customer’s publicly-facing digital asset(s) must be consistent with Deque’s reasonable policies for trademark and logo usage communicated to Customer from time to time, and must include a backlink to www.deque.com. Any use by Customer or its authorized representatives of any Deque Certification mark and all goodwill associated therewith shall inure to the benefit of Deque. Deque may terminate the license granted with respect to any Deque Certification Mark at any time upon written notice to Customer if Customer is in violation of its obligations under this Section 16.4 and Customer must immediately discontinue all use of such Deque Certification Marks upon receipt of the notice.

16.5 Assignment and Transfer of Rights.

Neither party may assign any of its rights under this Agreement (including the Order Forms) or delegate its performance under this Agreement, whether voluntarily or involuntarily, by merger, consolidation, dissolution, operation of law, or in any other manner, without the prior written consent of the other party. Notwithstanding the foregoing, Deque may assign its rights and delegate its performance under this Agreement, and any licenses granted hereunder, to: (i) any entity that acquires all or substantially all of Deque’s assets or substantially all of the assets of that portion of Deque’s business that manages this Agreement; (ii) any Affiliate that controls, is controlled by, or is under common control with Deque; and (iii) any successor in a merger, acquisition, or reorganization, including any judicial reorganization, with notice to Customer within 30 days of such assignment. Any purported assignment of rights or delegation of performance in violation of this Section is void.

The local list price of Deque Software may vary from geographic area to geographic area and Customer’s use of the Software and/or Documentation may be subject to an additional fee based on list price differences if Customer installs and/or uses the Software in a location outside the country for which the Software was initially licensed. If Software is hosted on the Customer’s premise, Customer may not relocate the Software without the prior written consent of Deque.

16.6 Successors and Assigns; No Third-Party Beneficiaries. This Agreement (including the Order Forms) is legally binding upon and inures to the benefit of the parties and their permitted successors and assigns. No third party is intended to benefit from, nor may any third party seek to enforce, any of the terms of this Agreement.

16.7 Relationship of the Parties. Nothing contained in this Agreement shall be deemed to create an association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties, or to grant either party the right or authority to assume, create or incur any liability or obligation of any kind, express or implied, against, in the name of, or on behalf of, the other party.

16.8 Waiver of Additional Terms. By entering into this Agreement, Customer waives all terms and conditions contained in its purchase order, vendor portal or other documents that are different from or additional to the terms and conditions set forth in this Agreement, and all such different or additional terms and conditions shall be null and void.

16.9 Publicity. Neither party shall, except as otherwise required by applicable law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s marks or logos without the prior written consent of the other party; provided, however, that Deque may include Customer’s name and logo in its lists of Deque customers, its public website, RFP responses and other promotional material, subject to Customer’s trademark and logo usage guidelines provided by Customer to Deque at marketing@deque.com. Deque agrees to promptly cease such uses of Customer’s name and logo following Customer’s request sent to marketing@deque.com. Customer may use Deque’s name and logo as explicitly provided in this Agreement.

16.10 Amendments. Deque reserves the right to change the terms of this Agreement at any time at its sole discretion. Deque will notify Customer electronically of any such changes, either through [Deque’s support portal] or by email. Such changes shall become effective and binding upon the parties thirty (30) days after Deque delivers notification of such changes. The terms of this Agreement may not otherwise be modified or amended other than by a writing executed by both parties by their duly authorized representatives. However, an Order Form may not be amended other than by a writing executed by both parties by their duly authorized representatives.

16.11 Order of Precedence. Every Order Form (including its exhibits and attachment(s)) is an integral part of this Agreement and is incorporated into this Agreement. Should any terms contained in any Order Form conflict with any provision of this Agreement, the provision contained in the Order Form shall control with respect to that Order Form, unless the term contained in this Agreement expressly states otherwise. In the event of any conflict between the terms of this Agreement and the terms of any purchase order, invoice or any other similar documentation issued in connection with the transactions contemplated under this Agreement, the terms of this Agreement shall govern and control.

16.12 Waiver. The failure of a party to enforce any of the provisions of this Agreement (including the Order Forms), or to exercise any option provided in this Agreement, or to require performance by the other party of any of the provisions in this Agreement, is not a present or future waiver of such provisions and does not affect the validity of this Agreement or the right of the party to enforce every provision of this Agreement thereafter. The express waiver (whether one or more times) by a party of any provision, condition or requirement of this Agreement does not constitute a waiver of any future obligation of the other party to comply with such provision, condition, or requirement.

16.13 Remedies Cumulative. Except as specifically set forth in this Agreement, the rights and remedies set forth in this Agreement are cumulative and are not intended to be exhaustive. A party’s cure of any failure to perform under this Agreement does not excuse liability for any delays or other damages the non-defaulting party may have incurred resulting from the failure.

16.14 Severability. If any provision of this Agreement (including the Order Forms) is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement remain in full force if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable.

16.15 Counterparts. Each Order Form may be executed in one or more counterparts, each of which is deemed an original and all of which, taken together, constitutes a single enforceable agreement. The execution and delivery of counterparts by electronic mail, electronic form (including execution by way of an electronic or other signature stamp (“E-signature”)), website submission, facsimile or original manual signature, regardless of the means or any variation in pagination or appearance, shall be binding upon the parties.

Submit your agreement

[HUBSPOT_EMBED_CODE]