Standard Terms & Conditions

Last Modified on March 13, 2017

This Software License and Service Agreement (this “Agreement”), sets forth terms under which The Marcus Buckingham Company, a Delaware corporation, with principal offices located at 8350 Wilshire Boulevard, Beverly Hills, CA 90211 (“Company”) shall provide the customer (“Customer”) with certain services and software licenses described on Statement(s) of Work and is effective as of the date set forth on those Statement(s) of Work (the “Effective Date”).  Each of Company and Customer may hereinafter be referred to as a “Party”, and collectively as the “Parties”.

1. Services and Licenses.

1.1 Company will provide to Customer the services described in this Agreement and any written Statement of Work (“SOW”) between the Parties, a form of which is attached hereto as Exhibit A, in accordance with the terms and conditions of this Agreement and the applicable Statement of Work (the “Services”). Each SOW will become a part of and be governed by the terms of this Agreement.  Any conflict between the terms of this Agreement and a SOW will be resolved in favor of the SOW if the SOW explicitly states that it is intended to modify the conflicting terms of this Agreement.

1.2 To the extent set forth in a SOW, Company may also grant to Customer limited licenses to use the Application (as defined below) and/or various Company Materials (as defined below). Customer agrees to use the Application and/or Company Materials in strict compliance with the terms of this Agreement and the applicable SOW.

1.3 Subject only to the limited licenses that may be granted from time to time by Company to Customer as shall be expressly set forth in an SOW, as between the Parties, Company owns the exclusive right, title and interest, including all patent, copyright, trademark, trade names, trade secrets (including, without limitation, all related technical know-how) and other intellectual property rights, throughout the world, in and to the Application and Company Materials (as defined below) and any and all portions or copies thereof, and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of Company, Customer or any third party (“Proprietary Rights”), and as between the Parties, all such Proprietary Rights shall vest in and be assigned to Company.  The licenses granted in this Agreement (including any SOW) shall not constitute a sale of the Application or Company Materials, or of the underlying software and Proprietary Rights therein.

1.4 All rights not expressly granted to Customer under this Agreement (including any SOW) are expressly reserved to Company.

1.5 Customer shall not, and shall not permit any User (as defined below) to, directly or indirectly: (a) use the Application or Company Materials for any unlawful or unauthorized purpose or to compete with any Company service; (b) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Application or Company Materials; (c) except as permitted in relation to an Insubstantial Amount of Data, copy, transfer, distribute, reproduce, modify, translate, or create derivative works from the Application or Company Materials or make available any part of the Application or Company Materials to non-Users; (d) share Application IDs or passwords or install, sublicense, rent, lease, distribute, sell, resell, assign, or otherwise transfer the rights to access and use the Application to any third party; (e) use any trademarks, service marks, names, logos or other identifiers from the Application or Company Materials without permission; or (f) remove any copyright, trademark, service mark and other proprietary notices contained on or within the Application or Company Materials, or any graphical representation thereof.

1.6 Customer shall use the Company Materials and Application with such copyright, trademark, service mark and other proprietary notices and policies of Company as Company shall reasonably designate from time to time.

1.7 The Company will provide the Services in accordance with this Agreement and the applicable SOW, and perform them with due care and skill in a proper and professional manner consistent with industry best practice.

2. Term.

2.1 This Agreement begins on the Effective Date and, unless earlier terminated pursuant to this Agreement, continues for a period of one (1) year (the “Initial Term”).  After the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each a “Renewal Term”) unless terminated earlier pursuant to this Agreement.  The Initial Term and any Renewal Term shall constitute the entire term (“Term”) of this Agreement.

2.2 Either Party may terminate this Agreement effective at the end of the Initial Term or the end of any Renewal Term by providing at least thirty (30) days prior written notice of non-renewal to the other Party.  In addition, either Party may terminate this Agreement during the Term: (a) effective upon providing thirty (30) days prior written notice (ten (10) days with regard to the payment of Fees), if the other Party breaches or violates any of its material obligations set forth in this Agreement, and fails to cure such breach or violation within thirty (30) days (ten (10) days with regard to the payment of Fees) after receiving written notice of such breach or violation from the other Party; or (b) immediately if the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such Party.

3. Fees and Payment.

3.1 Customer shall pay Company the fees set forth in the applicable SOW to this Agreement for the Services and licenses set forth therein, together with all applicable taxes (the “Fees”).  Company’s obligation to provide access to the Application, Company Materials or any Services under this Agreement and any SOW is conditioned upon Customer’s prompt and timely payment of any and all amounts due.  Unless otherwise specified in any SOW or in an applicable invoice, Customer shall pay Company all Fees within thirty (30) days from the date of Company’s invoice for Services performed.  Any payments not made by its respective due date shall be subject to a late charge of one and one-half percent (1.5%) per month or the highest rate allowed by law, whichever is less.  All payments made to Company shall be made by wire transfer, ACH, credit card or check. If Customer objects to all or any portion of any invoice, Customer shall notify Company of its objection within fifteen (15) days from the date of Customer’s receipt of the invoice, give reasons for the objection, and pay only that portion of the invoice not in dispute.

3.2  Customer shall, if applicable and provided for in a SOW, reimburse Company for the reasonable and actual travel and living expenses incurred by Company in performing the Services or in providing on-site training or coaching, so long as such expenses are pre-approved in writing by Customer.

3.3 Customer shall, if applicable and provided for in any SOW, reimburse Company for the cost of any software, hardware or any other equipment Company purchases at the request of or by instruction of Customer, so long as such expenses are preapproved in writing by Customer.

4. Data and Materials Ownership, Aggregation, License and Storage.

4.1 Company acknowledges and recognizes Customer’s need to protect PII Derivative Data.  Therefore, Company shall not disclose the PII Derivative Data or Customer Data to any third party unless (a) directed by Customer, or (b) such disclosure is made by Company in response to a court order, subpoena or other legal process, and provided that Company has given Customer reasonable notice of such court order, subpoena or other legal process; provided, however, Company may disclose such information to Company’s parent company, Automatic Data Processing, Inc. and its subsidiaries and affiliates (the “ADP Family”) who shall each protect and keep such information confidential as provided herein.  Further, Company agrees to convert all PII Derivative Data to Non-PII Derivative Data upon termination of the Agreement and all SOWs pursuant to Section 13.

4.2 Subject to the terms and conditions of this Agreement, Customer hereby grants to Company (a) during the Term of this Agreement and while any SOW remains in effect and for thirty (30) days thereafter, the limited, non-exclusive, revocable, non-assignable and non-transferable license to access, use, reproduce, display, transmit, utilize the Customer Data and create Derivative Data from the Customer Data, solely for the purpose of providing the Application and the Services to Customer under this Agreement and (b) Customer hereby grants to Company and the other members of the ADP Family during and after the Term of the Agreement the worldwide perpetual, irrevocable, royalty-free right and license to collect, store, access, distribute, sublicense, modify and use Non-PII Derivative Data in connection with their respective businesses, and combine Non-PII Derivative Data with other similar data from other customers.

4.3 Subject only to the limited license expressly granted in Section 4.2, as between the Parties, Customer shall own all right, title and interest in and to Customer Data, and Company shall own all right, title and interest in and to Company Materials and Derivative Data.  For purposes of clarity, Customer agrees that Derivative Data, including PII Derivative Data, including but not limited to a User’s “Strength Role,” “StandOut Report” or a team’s “Pulse” or “Engagement Pulse Survey Results, ”Performance Pulse”, “Check-Ins” shall be exclusively owned by Company.

4.4 Customer agrees that it shall be solely responsible for making and keeping current copies of all Customer Data and related information and that any Customer Data stored on or through the Application is done at Customer’s own risk.

5. Customer and User Conduct.

Company may immediately suspend or terminate this Agreement and access to the Application and Services without liability if: (a) Customer or any User, in connection with their use of the Application, Services or Company Materials participates in, undertakes, encourages or displays (as applicable) (i) any political hate-mongering, racial, ethnic, fraudulent, misleading or otherwise objectionable content or false advertising; (ii) any hacking or software pirating; (iii) any activity that violates any applicable state, federal or international laws, rules or regulations; or (iv) any activity that jeopardizes Company’s network connection and/or Company’s business in any way, as determined by Company in its sole discretion; (b) Customer or any User engages in any of the prohibited conduct listed in Section 1.4; (c) Customer or any User does not cooperate with Company’s investigation of suspected misuse; or (d) there is another event for which Company reasonably believes that the suspension of access to the Application, Services or Company Materials is necessary to protect Company, Customer, Users or Company’s other customers.

6. Confidentiality.

6.1 Each Party receiving Confidential Information (the “Receiving Party”) of the other Party (the “Disclosing Party”) shall: (a) treat such Confidential Information as the confidential property of the Disclosing Party and be responsible for any breach of the terms hereof by itself or any authorized person on its behalf (including, in the case of Customer, any breach by a User); (b) not use the Confidential Information except in connection with its use of the Application and Services as expressly permitted in this Agreement (c) not disclose or otherwise make available the Confidential Information of the Disclosing Party to any third party (except as authorized herein and other than to such party’s employees who have a need to know such Confidential Information, and have been advised of the confidential nature of such information and the obligations that apply to them in connection therewith and other than Company’s subcontractors who are performing the services described in a SOW, provided that the Company shall remain liable for any unauthorized disclosure of Customer’s Confidential Information by those subcontractors); and (d) maintain the confidentiality of the Confidential Information of the Disclosing Party as it would its own most highly confidential information, but in no event shall the Receiving Party use less than reasonable care. Furthermore, each Party shall use commercially reasonable efforts to procure from each of its employees and from all independent contractors written undertakings that: (a) they will not use, disclose or otherwise make available or allow to be used, disclosed or made available, the Confidential Information of the Disclosing Party, by or to any third party (except as authorized herein); and (b) they will maintain the confidentiality of such Confidential Information.

6.2  “Confidential Information” means, with respect to a given party, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, business and marketing plans, customer names, prospective customer names, the terms and pricing under this Agreement, any data relating to any research project, work in process, engineering, manufacturing, marketing, servicing, financing or personnel matter, data relating to a party’s present or future products, sales, suppliers, clients, customers, employees, investors or business partners (including any confidential information of such suppliers, clients, customers, employees, investors or business partners) and all information clearly identified in writing at the time of disclosure as confidential.

6.3 In addition, in the case of Customer, Customer Data and PII Derivative Data shall be deemed the Confidential Information of Customer, and in the case of Company, the Application, Company Materials and Non-PII Derivative Data shall be deemed the Confidential Information of Company.

6.4 Confidential Information does not include information that:  (a) was or is in the public domain prior to the date of disclosure; (b) was or is lawfully received by the Receiving Party from a third party independently of this Agreement without obligation of confidentiality; (c) was or is already known by or in the possession of the Receiving Party; or (d) is required to be disclosed under applicable law or by a governmental or court order, decree, regulation or rule, provided that the Receiving Party gives written notice to the Disclosing Party as far in advance as possible prior to disclosure.

6.5 The Receiving Party acknowledges that the Disclosing Party shall incur irreparable damage if the Receiving Party should breach any of the provisions of this Section.  Accordingly, if a Receiving Party or any of its respective agents or representatives breaches or threatens to breach any of the provisions of this Section, the Disclosing Party shall be entitled, without prejudice, to all the rights and remedies available to it, including an equitable relief restraining any potential breach of the provisions of this Section by the Receiving Party, without having to prove damages or post a bond.

7. Representations and Warranties.

7.1 Each Party represents and warrants to the other that (a) it has the requisite power and authority to enter into and carry out the terms of, to grant the rights set forth in, and to perform its obligations under, this Agreement; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; and (c) this Agreement has been validly executed and delivered by, and constitutes a valid and binding obligation of, each Party enforceable in accordance with its terms.

7.2 Without limiting the generality of Section 7.1 above, Company represents and warrants to Customer that, to the best of Company’s knowledge but without having conducted any patent infringement analysis, the Application and Company Materials, at the time made available to Customer, do not infringe the copyrights, trademarks, trade dress or patents of any third party in the United States.

8. Disclaimer of Warranties.

EXCEPT AS SET FORTH HEREIN, THE SERVICES, APPLICATION AND COMPANY MATERIALS ARE PROVIDED “AS-IS” AND WITHOUT ANY OTHER EXPRESSED OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. EXCEPT AS SET FORTH HEREIN, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES, APPLICATION AND/OR COMPANY MATERIALS OR THE OPERATION OR USE THEREOF.  COMPANY HEREBY EXCLUDES ALL IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. COMPANY HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT, CONCERNING THE SERVICES, APPLICATION AND/OR COMPANY MATERIALS AND OPERATION OR USE THEREOF.  COMPANY DOES NOT WARRANT THAT THE APPLICATION, COMPANY MATERIALS OR SERVICES WILL MEET ALL OF CUSTOMER’S BUSINESS REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE, AND COMPANY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS (INCLUDING ANY LOST DATA).

9. Disclaimer of Damages and Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN THE CASE OF  INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OF THE OTHER PARTY, , NEITHER PARTY SHALL BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, OR STRICT LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLU­DING LOSS OF PROFITS, DATA OR GOODWILL, REGARD­LESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN THE CASE OF  INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OF THE OTHER PARTY, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT IN ANY CALENDAR YEAR (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED An Amount Equal To 12 Times The Average Ongoing Monthly Fees Paid Or Payable By Customer To Company Under This Agreement During Such Calendar Year (THE “ORDINARY CAP”); PROVIDED, HOWEVER, THAT IF, AND ONLY IF, DAMAGES IN A PARTICULAR CALENDAR YEAR ARISE FROM BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 HEREOF, THEN THE ORDINARY CAP WILL BE INCREASED BY AN ADDITIONAL AMOUNT NOT TO EXCEED AN AMOUNT EQUAL TO 12 TIMES THE AVERAGE ONGOING MONTHLY FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING SUCH CALENDAR YEAR. FOR THE AVOIDANCE OF DOUBT, IN NO CASE SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT IN ANY CALENDAR YEAR EXCEED AN AMOUNT EQUAL TO 24 TIMES THE AVERAGE ONGOING MONTHLY FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING SUCH CALENDAR YEAR.

10. Indemnification.

10.1 Customer and its successors and assigns shall indemnify, defend, and hold harmless Company and its directors, officers, employees and agents and its and their successors and assigns from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs that any such indemnified party may incur or suffer directly as a result of a third party claim or demand, which arise, result from, or relate to (a) a breach by Customer of any of its representations, warranties or covenants set forth in this Agreement, or (b) Customer’s or a User’s use of the Application, Company Materials or Services in violation of the terms of this Agreement.

10.2 Company and its successors and assigns shall indemnify, defend, and hold harmless Customer and its directors, officers, employees and agents and its and their successors and assigns from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs that any such indemnified party may incur or suffer directly as a result of a third party claim or demand, which arise, result from, or relate to a breach by Company of any of its representations, warranties or covenants set forth in this Agreement.  Notwithstanding the foregoing, Company shall have no liability or indemnity obligation for any such claim arising from (i) modifications or maintenance of the Application, or Company Materials by a party other than Company, or (ii) or the use of the Application, Company Materials and/or Services in any manner not authorized herein or in violation of this Agreement.

10.3 The foregoing indemnification obligations are conditioned on the indemnified party: (a) giving the indemnifying party prompt written notice of the relevant claim; (b) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; and (c) giving the indemnifying party the right to control the defense and settlement of such claim, except that the indemnifying party shall not enter any settlement other than for money damages without the indemnified party’s prior written approval.  The indemnifying party will pay any and all costs, damages and reasonable attorney’s fees and reasonable expert witness fees awarded against the indemnified party and all expenses incurred by the indemnified party in connection with or arising from any such claim, suit or proceeding.

10.4 During the term of this Agreement, Customer will maintain: (a) Commercial general liability or public liability insurance in the amount of $5 million in the aggregate; (b) Errors or omissions, or professional indemnity insurance in the amount of $2 million in the aggregate; and (c) workers compensation insurance as required by law.  Customer will provide Company with reasonable evidence of such insurance upon request.

During the term of this Agreement, Company shall maintain the following insurance coverage in at least the following amounts:

1. Workers’ Compensation with statutory limits required by each state exercising jurisdiction over the Company associates engaged in performing services under this agreement.
2. Employer’s Liability coverage with a minimum limit of $500,000 for bodily injury by accident or disease.
3. Commercial General Liability coverage (including products and completed operations, blanket or broad form contractual, personal injury liability and broad form property damage) with minimum limits of one million dollars ($1,000,000) per occurrence for bodily injury/property damage and one million dollars ($1,000,000) for personal injury and products/completed operations.
4. Business Automobile Liability coverage (covering the use of all owned, non owned and hired vehicles) with minimum limits (combined single limit) of one million dollars ($1,000,000) for bodily injury and property damage.
5. Excess or Umbrella Liability coverage with a minimum limit of two million dollars ($2,000,000) coverage in excess of the coverage as set forth in items 2, 3, and 4 above.
6. Employee Dishonesty (Fidelity) and Computer Crime coverage (for losses arising out of or in connection with any fraudulent or dishonest acts committed by employees of Company, acting alone or in collusion with others) with a minimum limit of ten million dollars ($10,000,000).
7. Errors & Omissions coverage in the amount of ten million dollars ($10,000,000).

Subject to Company’s right to self-insure coverage as set forth below, the foregoing coverages shall be maintained with insurers which have an A.M. Best rating of A- or better and /or an equivalent rating from a recognized insurance company rating agency.

Company’s policies shall be primary and any insurance maintained by Client is excess and noncontributory.   Promptly upon Client’s written request for same, Company shall cause its insurers or insurance brokers to issue certificates of insurance evidencing that the coverages required under this Agreement are maintained and in force.  In addition, Company will use reasonable efforts to give thirty days’ notice to Client prior to cancellation or non-renewal of any of the policies providing such coverage; provided, however that Company shall not be obligated to provide such notice if, concurrently with such cancellation or non-renewal, Company provides self-insurance coverage as described below or obtains coverage from another insurer meeting the requirements described above.

11. Compliance with Applicable Laws.

Each Party shall comply with all applicable federal, state, county and local laws, ordinances, regulations, and codes and will procure all required permits, approvals, inspections and certificates in order to operate its business in compliance with all applicable laws.

12. Use of Customer’s Trademarks.

12.1 Only to the extent that Customer requests customized branding of the Application, Company Materials or Services in any SOW, Customer grants to Company for the term of this Agreement, a non-exclusive, non-transferable license to use, reproduce, publicly and digitally display and broadcast Customer’s name, trademarks, trade names, service marks, logos, URLs (“Customer Trademarks”) in the customized Application, Company Materials or Services, as applicable.

12.2 Customer grants Company limited permission to use Customer Trademarks on Company’s website and in marketing materials for promotion of the Application, Company Materials and Services (including without limitation, any press release regarding this Agreement or the relationship between Company and Customer); provided, however, that any such use shall be subject to Customer’s prior written consent as well as usage guidelines related to Customer Trademarks, if provided by Customer to Company.  Company agrees that nothing in this Agreement shall give any right, title, or interest in or to Customer Trademarks other than the right to use the Customer Trademarks in the manner contemplated by this Agreement.

13. Effect of Termination.

Upon termination of this Agreement for any reason:

13.1 All licenses granted hereunder (including in any SOW) shall immediately terminate, except for the license granted in Section 4.2(b);

13.2 Company shall:  (a) convert all PII Derivative Data to Non-PII Derivative Data; (b) allow Customer to export Customer Data; and (c) except as prohibited by applicable law or legal process, return to Customer any tangible materials (in hard or soft copy) constituting Customer’s Confidential Information and destroy or delete all copies thereof, and if requested by the other Party, certify compliance with this requirement in writing within thirty (30) days from the date of termination;

13.3 Customer shall: (a) discontinue, and shall ensure that each User discontinues, all use of the Application and Services; (b) except as prohibited by applicable law or legal process, return to Company any tangible materials (in hard or soft copy) constituting Company’s Confidential Information and destroy or delete all copies thereof, and if requested by the other Party, certify compliance with this requirement in writing within thirty (30) days from the date of termination;

13.4 Customer shall promptly make all payments payable in accordance with the terms of this Agreement and any SOW attached thereto.  Customer shall be liable for all Fees (if any) incurred prior to the effective date of termination and shall not be entitled to a refund of any Fees paid by Customer prior to the date of termination, except in connection with Services paid for but not yet performed as of the effective date of termination; and

13.5 All SOWs shall terminate on the same date as the Agreement.

14. Miscellaneous.

14.1Survival.Sections 1.2, 3, 4, 6, 7, 8, 9, 10, 13 and 14 shall survive termination of this Agreement.

14.2         Governing Law.  This Agreement shall be governed by and construed under the laws of the State of New York, without reference to conflicts of law principles.  The Parties expressly agree that any controversy or claim arising out of or relating to this Agreement shall exclusively be brought in New York, New York, and the Parties irrevocably consent to the jurisdiction of the State and Federal courts located in New York, New York.

14.3         Attorney’s Fees.  Should either Party hereto initiate a legal or administrative action or proceeding (an “Action”) to enforce any of the terms or conditions of this Agreement, the prevailing Party (as determined by the court or other fact-finder) shall be entitled to recover from the losing Party all reasonable costs of the Action, including without limitation attorneys’ fees and costs.

14.4Relationship of the Parties.  Each Party hereto is an independent contractor and nothing contained herein shall be construed to create a partnership, joint venture or agency relationship between Company and Customer, and neither Party shall be authorized to bind the other in any way.  This Agreement is between Company and Customer, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any User accessing the Application by means of an account established by Customer).

14.5No Waiver. The failure of either Party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder.

14.6Remedies; Amendment. Except as otherwise specifically provided herein, no remedy referred to in this Agreement is intended to be exclusive.  No delay by either Party in exercising any of their respective rights or remedies hereunder shall be deemed to be a waiver of such rights or remedies.  No waiver by either Party of any rights under this Agreement or breach by the other Party hereunder shall in any way be a waiver of any such rights in the future or any future breach. Any waiver, amendment or modification of this Agreement, and any approval or consent hereunder must be in writing and signed by the Party against whom enforcement is sought or the Party providing such approval or consent.

14.7         Assignment; Subcontracting. Neither Party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other Party.  Notwithstanding the foregoing, Company may assign this Agreement to a third party without such consent (a) in the event of a merger, reorganization or sale of all or substantially all of Company’s assets or voting securities or (b) to its own subsidiary or division.  Company reserves the right to subcontract any or all of the services described in a SOW, provided that Company remains fully responsible under this Agreement for the performance of any such subcontractor.

14.8         Severability.  If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the Parties and, in any event, the remaining provisions of this Agreement shall remain in full force and effect and shall be binding upon the Parties hereto.

14.9         Headings. The headings set forth in this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement.

14.10Force Majeure. Except for the payment of monies when due, neither Party shall be liable for damage to the extent that it is caused by an event beyond its control, including, acts of God, acts of civil or military authority, labor disputes, failure or delay of suppliers or systems, including communications and power systems, DDOS attacks, fire, sabotage, war, embargo or acts or omissions of the other Party caused by any of such event.

14.11       Notices. All notices, statements and reports required or permitted by this Agreement shall be in writing, addressed as set forth in the opening paragraph and deemed to have been effectively given and received: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; or (ii) when delivered if delivered personally or sent by express courier service to the address set forth below.  Either Party may change its address for the purpose of this paragraph by notice given pursuant to this paragraph.

14.12       Entire Agreement.  This Agreement and any SOWs thereto represent the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.  Except as otherwise provided herein, all modifications or amendments to this Agreement and SOWs must be in a writing signed by both Parties.

14.13       Agreement in Counterparts.  This Agreement may be signed by Customer and Company in counterparts, and facsimile and PDF signatures shall have the same force and effect as an original signature.

14.14       Definitions.

“Application” means the web-based application software known as StandOut that may be made available pursuant to an SOW by Company to Customer.

“Company Materials” means any information, content or materials in written or electronic form provided by Company to Customer through the Application, in the course of providing Services or by a license grant set forth in an SOW, other than Customer Data.

“Customer Data” consists of information input into the Application by Customer or any of its Users.

“Derivative Data” means data that the Company derives from a combination of Proprietary Rights and Customer Data, whether in personally identifiable form (“PII Derivative Data”) or in aggregate and non-personally identifiable form (“Non-PII Derivative Data”).

“Insubstantial Amount of Data” means an amount of Company Materials that has no independent commercial value and could not be used as a substitute for the Application or any part of it.

“User” means any employee or independent contractor of Customer who (i) utilizes the Company Materials or Services pursuant to the terms of this Agreement and/or (ii) has his or her own valid Application ID and password and who is authorized thereby to access and use the Application for and on behalf of Customer. Customer acknowledges and agrees that Customer shall remain liable for all actions and omissions of its Users hereunder or under any applicable separate agreement.