This TERMS OF SERVICE AGREEMENT (this “Agreement”) is entered into by and between Salesfusion, Inc., a Delaware corporation (“Salesfusion”) and the individual and/or entity designated as “Customer” on one or more ordering documents referencing this Agreement (each an “Order<,” and together, the “Orders”) and describing the software subscription and related services to be provided by Salesfusion (collectively, the “Services”). Salesfusion and Customer are sometimes referred to in this Agreement individually as “Party” and collectively as “Parties”. This Agreement is effective as of the date Customer executes the first Order and/or begins using the Services (as defined below) (the earlier date being the “Effective Date”).
Customer Rights and Responsibilities. Subject to the terms and conditions of this Agreement, Salesfusion hereby grants to Customer a nontransferable, nonexclusive right to access and use the Services and to authorize Customer’s employees, agents, and contractors (each, an “End User” and collectively, the “End Users”) to use the Services during the Term. This Agreement grants Customer and its End Users the right to use the Services and does not grant a license to any software. Customer is responsible for ensuring that its End Users comply with all of the terms and conditions in this Agreement and Customer shall be liable for all acts and omissions of its End Users. Customer shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, computers, computer operating systems, internet access, and web browsers. Customer shall be responsible for maintaining the security of Customer’s account access passwords. Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services and shall use no less than industry standard security precautions in connection with its use of the Services and content obtained therefrom.
Usage Restrictions and Requirements.
2.1. Customer shall use the Services only for its own internal business operations and shall not use the Services in any manner that could damage, disable, disrupt, overburden, impair or otherwise interfere with Salesfusion’s provision of the Services or the integrity or performance of the Services.
2.2. Customer shall not use the Services to store or transmit: (a) any infringing, libelous, or otherwise unlawful or tortious material, (b) any material in violation of third-party privacy or confidentiality rights, or (c) any viruses, worms, defects, Trojan horses, or any items of a destructive nature.
2.3. Customer shall not, directly or indirectly: (a) reverse engineer, decompile, disassemble, decipher, analyze, translate, or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (collectively, the “Software”); (b) modify, translate, or create derivative works based on the Services or the Software, or copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or the Software; (c) frame or mirror the Services; (d) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Salesfusion; (e) use the Services for purposes of evaluating Salesfusion’s products, including performance, accuracy, benchmarking or other comparative analysis, and intended for publication without Salesfusion’s prior written consent; or (f) remove any proprietary notices or labels from the Services or the Software.
2.4. Customer shall comply with all applicable laws and regulations with respect to its use of the Services, including without limitation all local or national laws applicable to bulk and commercial email in the regions where Customer and End Users have business operations or where their email recipients are located (e.g., the CAN-SPAM Act and CASL). Salesfusion reserves the right to immediately suspend or terminate Services to any Customer not adhering to these policies. Without limiting the foregoing, Customer shall not, in any correspondence sent through the Services: (a) send email with false, misleading, or deceptive content, including to and from addresses, subject lines, header information, and message bodies; (b) use email lists generated through surreptitious means, including “scraping” or “harvesting”; (c) use purchased, rented or third party lists of email addresses; or (d) send Unsolicited Email. For purposes of this Agreement, the term “Unsolicited Email” means any email sent to persons other than: (i) persons with whom Customer has an existing business relationship, or (ii) persons who have consented to the receipt of such email, including publishing or providing their email address in a manner from which consent to receive email of the type transmitted may be reasonably implied. Customer will provide a clear, easy-to-use, and fully functional “unsubscribe” or “opt-out” method for recipients to revoke consent to receiving future emails from the sender, which must be included in every email sent via the Services. Customer shall honor any and all such revocations of consent according to all applicable laws. Customer will also provide the sender’s valid physical postal address within the content of each email sent via the Services. Salesfusion supports suppression file encryption.
Customer Representations and Warranties. Customer represents and warrants to Salesfusion that: (a) it has the right, power and authority to enter into the Agreement; (b) it will use the Services only in compliance with all applicable laws and regulations, including those related to export, spamming, privacy, data protection, intellectual property, consumer and child protection, pornography, obscenity and defamation; (c) it will abide by all access and use restrictions contained in any materials made available through the Services; (d) it will not use the Services in any manner for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups E:1, D:4 and D:3, as set forth in Supplement No. 1 to Part 740 of the United States Export Administration Regulations, and (e) it will not directly or indirectly provide access to the Services to any person (including any natural person or government or private entity) that is located in or is a national of any embargoed or highly restricted country under United States Export Regulations. Customer further represents and warrants that Customer is not located in, under the control of, or a national or resident of any such country or on any such list.
Ownership. Customer acknowledges and agrees that, as between Customer and Salesfusion, Salesfusion is the sole and exclusive owner of all rights, title and interest in and to the Services and any information developed or collected by Salesfusion in connection with its operation of the Services (other than Customer Data, as defined below), including but not limited to all ideas, inventions, inferences, discoveries, developments, formats and processes, and all copyrights, patent rights and other intellectual property and proprietary rights therein and thereto, and Customer shall not assert any claims to the contrary. Any rights not expressly granted to Customer herein are reserved by Salesfusion. All suggestions, enhancement requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by Salesfusion, and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership rights. Customer owns any data, information or material originated by Customer that Customer submits, collects or provides in the course of using the Services, including information regarding Customer’s contacts created through use of the Services (“Customer Data”). Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the Services. Salesfusion acquires no right, title or interest in or to Customer Data under this Agreement except to the limited extent necessary to perform the Services.
Orders. Customer agrees to purchase the Services specified in its Order(s) and to use the Services in accordance with the terms and conditions set forth in this Agreement. This Agreement and the Orders represent the Parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Salesfusion ordering document, and no terms included in any such purchase order or other non-Salesfusion ordering document shall apply to the Services. In the event of a conflict between this Agreement and any Order, the terms of this Agreement shall control.
Billing and Payment. Customer shall pay all fees set forth in each Order in accordance with the payment provisions set forth herein. Salesfusion will invoice Customer annually in advance for Services to be provided during the Term. The invoiced amounts will include fees for all Services to be provided during such period. If the Order specifies a different billing frequency, Customer will provide Salesfusion with valid and updated credit card or ACH information and hereby authorizes Salesfusion to charge such credit card or ACH for all Services listed in the Order, in accordance with the billing frequency stated in the applicable Order. Customer is responsible for providing complete and accurate billing and contact information to Salesfusion and notifying Salesfusion of any changes to such information. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities with respect to the Services (collectively, “Taxes”), and Customer shall be responsible for payment of all such Taxes (excluding taxes based on Salesfusion’s income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as set forth in the Order. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is lower, plus all reasonable costs and expenses of collection. Salesfusion may suspend or terminate any or all of the Services provided to Customer if Customer’s account has been delinquent for thirty (30) days, provided that such right shall not exist with respect to amounts subject to a good faith dispute. In the event Customer disputes any amounts stated in an invoice from Salesfusion, Customer must notify Salesfusion in writing of such disputed amounts within thirty (30) days after receipt of the applicable invoice. Such notice shall contain the amount disputed and the basis for Customer’s objection. The parties will work together in good faith to resolve the dispute as soon as reasonably practicable. Fees for the Services after the Initial Term or then current Renewal Term may be changed by Salesfusion at any time upon notice to Customer (which may be by email), which change(s) will be effective as of commencement of the immediately following Renewal Term. If Customer is purchasing the Services through a Salesfusion authorized reseller (“Reseller”), then Customer shall remit all payments to Reseller and all billing and payment terms will be determined by such Reseller.
Overages. If at any time Salesfusion determines that Customer’s database size (“Database Size”) has exceeded the maximum database size listed on an Order Form, Salesfusion shall notify Customer (which may be via email) and Customer shall have fourteen (14) days to bring its Database Size within the designated limit. If Customer fails to do so within fourteen (14) days after receipt of Salesfusion’s notice, Customer will be charged Salesfusion’s then-current usage fees applicable to such overage and such fees shall continue to apply for the remainder of the Term.
Customer Support. Salesfusion will provide assistance and support for Customer’s use of the Services and will use commercially reasonable efforts to respond to and resolve all Customer support issues. Salesfusion will have no obligation to support problems due to causes external to the Services or otherwise beyond the reasonable control of Salesfusion.
Maintenance. The Services may be temporarily unavailable from time to time for scheduled maintenance, unscheduled emergency maintenance, or due to other causes beyond Salesfusion’s reasonable control. Salesfusion shall use reasonable efforts to provide notice to Customer (which may be by email) of any scheduled unavailability of the Services. Notwithstanding the foregoing, Salesfusion’s normal windows for scheduled maintenance are on Saturdays between 6:00 a.m. and 9:00 a.m., Eastern Standard Time, and Salesfusion will not be obligated to notify Customer of unavailability of the Services during such times.
Changes to the Services; Discontinuance. Salesfusion may, without notice to Customer, update or otherwise modify the Services in its sole discretion, including without limitation providing updates or modifying features or functionality, or removing features or functionality (collectively, “Updates”). This Agreement applies to all such Updates. In the event Salesfusion discontinues the sale of any material portion of the Services, Salesfusion will either (at Salesfusion’s option): (a) terminate provision of the discontinued Services and refund Customer pro-rata for the fees prepaid by Customer with respect to the discontinued Services that would otherwise have been provided to Customer; or (b) continue to provide the Services to Customer through the end of Customer’s current Term, provided that the applicable fees for such period have been paid to Salesfusion.
Term and Termination.
12.1. Term. The Agreement shall commence as of the Effective Date and, unless earlier terminated as set forth below, shall remain in effect through the initial term designated in the applicable Order (the “Initial Term”). Unless otherwise stated in the Order, the Initial Term and each subsequent Renewal Term shall automatically renew for successive one (1) year periods (each a “Renewal Term”, and collectively with the Initial Term, the “Term”) unless either Party notifies the other of its intent not to renew, which notice must be provided at least thirty (30) days prior to the end of the Initial Term or the then-current Renewal Term.
12.2. Termination. In the event of a breach of this Agreement by either Party, the non-breaching Party shall have the right to terminate the applicable Order for cause if such breach has not been cured within thirty (30) days after written notice from the non-breaching Party specifying the nature of the breach. Without limiting the foregoing, Salesfusion may immediately suspend or terminate Customer’s password, account, and access to the Services if: (a) Customer fails to make payment within thirty (30) days after such payment is due; (b) Customer purchased the Services through a Reseller and such Reseller fails to pay to Salesfusion any portion of the fees owed for the Services to be provided to Customer; or (c) Customer violates any provision contained in Section 2, 3 or 4 of this Agreement.
12.3. Effect of Termination. Upon any termination or expiration of an Order, Customer’s right to access and use the Services covered by that Order shall immediately terminate. Any suspension or termination by Salesfusion pursuant to this Section shall not relieve Customer of its payment obligations and all fees set forth on the applicable Order will become immediately due and payable. Customer hereby acknowledges and agrees that Salesfusion has no obligation to retain Customer Data and that the Customer Data may be irretrievably deleted and destroyed within thirty (30) days after the termination or expiration of this Agreement. Termination or expiration of this Agreement shall not relieve either Party of its respective obligations to the other hereunder that arose prior to the effective date of termination. Notwithstanding anything herein to the contrary, all sections of this Agreement that, by their nature, should survive termination or expiration of this Agreement will survive, including without limitation, accrued rights to payment, use restrictions, ownership, indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
Salesfusion Limited Warranty. Salesfusion warrants to Customer that it will make commercially reasonable efforts to provide the Services substantially in accordance with the description of the Services on its website. In the event Salesfusion breaches the foregoing warranty and Customer provides Salesfusion with written notice of such breach, Customer’s sole remedy and Salesfusion’s sole obligation shall be one of the following options, such option to be selected by Salesfusion in its sole discretion: (a) to the extent practicable, Salesfusion may fix the Services and correct any defect or error, provided that Salesfusion agrees that such defect or error is correctable; or (b) Salesfusion may terminate Customer’s use of the Services and issue a refund to Customer in an amount equal to the fees pre-paid by Customer (if any) for Services not received. The foregoing states Customer’s sole and exclusive remedy, and Salesfusion’s entire liability, for breach of the above warranty under this Agreement. Customer agrees that it shall have no remedy under this Section for claims made after expiration of the Term. The Services include software under license from third parties. Such third parties do not (i) make any representations or warranties with respect to the Services, (ii) assume any liabilities regarding Customer’s use of the Services, or (iii) agree to or assume any obligation to provide support or information related to the Services.
DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THE PREVIOUS SECTION (LIMITED WARRANTY), THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATION OR WARRANTY, AND SALESFUSION AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. SALESFUSION AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SALESFUSION AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT: (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER SALESFUSION NOR ITS THIRD PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SALESFUSION IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
15.1 By Salesfusion. Salesfusion will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a claim that Salesfusion’s technology used to provide the Services infringes any patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event will Salesfusion have any obligations or liability under this Section arising from: (a) Customer’s combination or use of the Services with materials not reasonably contemplated by Salesfusion, if the claim would have been avoided by the non-combined or independent use of the Services; (b) modification of the Services by anyone other than Salesfusion if the third party claim would have been avoided by use of the unmodified Services; (c) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (d) Customer’s use of the Services in a manner not in accordance with this Agreement; (e) Customer’s use of other than Salesfusion’s most current release of the Services if the third party claim would have been avoided by use of the most current release or revision; or (f) use of any content, information, or data provided by Customers, End Users or other third parties, if the third party claim would have been avoided by not using that content, information or data. If Salesfusion reasonably believes the Services infringe, then Salesfusion will, at Salesfusion’s option: (i) obtain the right for Customer, at Salesfusion’s expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that it no longer infringes. If Salesfusion does not believe the foregoing options are commercially reasonable, then Salesfusion may suspend or terminate this Agreement. If a suspension under this Section continues for more than six months, either Party may either terminate this Agreement with immediate effect or terminate the impacted Services with immediate effect, in which case Salesfusion will issue a refund to Customer in an amount equal to the fees pre-paid by Customer (if any) for Services not received.
15.2 By Customer. Customer will indemnify, defend, and hold harmless Salesfusion from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of: (a) a claim that Customer Data infringe any patent, copyright, trade secret or trademark of a third party; (b) any deficiency (including penalties and interest) relating to Taxes that are the responsibility of Customer; (c) a claim alleging facts that would constitute a breach by Customer of its representations in this Agreement; or (d) Customer’s failure to comply with the terms and conditions of this Agreement.
15.3 General. The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the Party seeking indemnification to admit liability or to pay any money will require that Party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other Party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO SALESFUSION IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE DISCLAIMER, EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES. SOLELY TO THE EXTENT THAT THEY ARE HELD TO BE LEGALLY INVALID, THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL NOT APPLY AND ALL OTHER TERMS SHALL REMAIN IN FULL FORCE AND EFFECT.
17.1 Confidential Information. For purposes of this Agreement, “Confidential Information” means information disclosed by one Party to the other Party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Without limiting the foregoing, Confidential information shall include: (a) with respect to Salesfusion, the Software, the Services, the principles (including, but not limited to, software development or design) upon which they are based, the manner by which they operate, and any improved software object functionality and performance derived from Customer’s use of the Services; (b) with respect to Customer, the Customer Data provided under this Agreement; and (c) with respect to both Parties, any information that relates to research, product plans, products, services, clients, markets, developments, inventions, designs, drawings, engineering, marketing or finances of the disclosing Party. Notwithstanding the foregoing, Confidential Information does not include information that: (i) the recipient of the Confidential Information already knew; (ii) becomes public through no fault of the recipient; (iii) was independently developed by the recipient; or (iv) was rightfully given to the recipient by another party.
17.2 Non-Disclosure. Each party will: (a) protect the other Party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information, but in no event less than reasonable care; and (b) not disclose the Confidential Information, except to affiliates, employees, agents and professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. Each Party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each Party is responsible for any actions of its affiliates, employees and agents in violation of this Section. Notwithstanding the foregoing, each Party may disclose the other Party’s Confidential Information when required by law but only after it, if legally permissible: (i) uses commercially reasonable efforts to notify the other Party; and (ii) gives the other Party the chance to challenge the disclosure. Each Party’s obligations regarding the Confidential Information of the other Party shall continue for a period of three (3) years after the expiration of this Agreement.
18.1 Governing Law; Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Georgia, excluding its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Uniform Computer Information Transactions Act will not apply to the Agreement. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN FULTON COUNTY, GEORGIA AND THE EXCLUSIVE VENUE OF, THE COURTS IN FULTON COUNTY, GEORGIA.
18.2 Assignment. The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, assigns and legal representatives, except that Customer shall not assign or otherwise transfer this Agreement to anyone, including any parent, subsidiaries, affiliated entities or third parties, or as part of the sale of any portion of its business, or pursuant to any merger, consolidation or reorganization without Salesfusion’s prior written consent, and provided the assignee agrees to be bound by all terms and conditions of this Agreement. Salesfusion shall be entitled to assign this Agreement to a successor of all or substantially all of its relevant assets to which this Agreement relates, provided such party agrees in writing to be bound by all terms and conditions of the Agreement.
18.3 Notices. Except as otherwise set forth herein, all notices must be in writing and addressed to the attention of the other Party’s legal department and primary point of contact at the Party’s mailing address set forth on the Order, or at such other address as provided by a Party from time to time by like notice, and shall be delivered (a) personally; (b) by a nationally recognized overnight courier; or (c) by pre-paid, first class, certified or registered mail, return receipt requested. Any such notice, demand or communication shall be deemed to have been duly given when delivered.
18.4 Publicity. Salesfusion may include Customer’s name and logo on in its client list and website. Customer agrees that its use of the Services may be used in case studies produced by Salesfusion provided that such case studies do not incorporate or disclose any of Customer’s Confidential Information. Either Party may issue press releases regarding the existence and general non-confidential business terms of this Agreement, subject to prior written approval of the other Party, which approval will not be unreasonably withheld.
18.5 Beneficiaries; No Agency. There are no third-party beneficiaries to this Agreement except the owner(s) of the third party software that is embedded in the Services. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
18.6 Equitable Relief. Nothing in this Agreement will limit either Party’s ability to seek equitable relief.
18.7 Force Majeure. Except for payment obligations, neither Party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the Party’s reasonable control.
18.8 No Waiver; Sever-ability; Amendment. Failure to enforce any provision of this Agreement will not constitute a waiver. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. Any waiver, alteration, modification, or amendment of this Agreement must be in writing and signed by both Parties.
18.9 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
Entire Agreement. This Agreement and all documents referenced herein constitute the Parties’ entire agreement relating to Customer’s use of the Services and supersede any prior or contemporaneous agreements regarding its subject matter.