THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S ACQUISITION AND USE OF THE VALDERA PRODUCT MADE AVAILABLE BY VALDERA, INC. (“VALDERA”). CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF THE VALDERA PRODUCT, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS AND CONDITIONS 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 VALDERA PRODUCT.
The Valdera Product may not be accessed for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. Valdera’s direct competitors are prohibited from accessing the Valdera Product, except with Valdera’s prior written consent.
This Agreement is effective between Customer and Valdera as of the date of Customer’s accepting this Agreement (the “Effective Date”).
Background
Valdera has developed and makes available a SaaS-based procurement solution for sourcing specialized chemicals and raw materials (the “Valdera Product”). Customer desires to use the Valdera Product to augment its existing sourcing capabilities.
- Definitions
1.1 The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
"Content” means information obtained by Valdera from third parties, including suppliers, and made available to Customer through the Valdera Product. “Valdera Product” excludes Content.
“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.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Valdera for the Valdera Product.
“Non-Valdera Product” means a third party or Customer web-based, mobile, offline or other software application that integrates with the Valdera Product (other than third party data hosting services used by Valdera). “Valdera Product” excludes Non-Valdera Products.
“Order Form” means an order form, quote or other similar document that sets forth the specific Valdera Product and pricing therefor (including in relation to overages), permitted number of users and subscription term, and that references this Agreement and is mutually executed by the parties.
- Valdera and Customer Responsibilities
2.1 Provision of Valdera Product. Subject to the terms and conditions of this Agreement, Valdera will make the Valdera Product available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Valdera Product for its internal business purposes to augment its purchasing of chemical and raw materials.
2.2 Data Security.
a) Valdera will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the Valdera Product (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.
b) To the extent that Valdera processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to Data Protection Legislation (as defined in the DPA), on Customer’s behalf, in the provision of the Valdera Product, the parties will execute a Data Processing Addendum ("DPA"), and such DPA is hereby deemed incorporated herein by reference.
2.3 Customer Responsibilities.
a) Customer acknowledges that Valdera’s provision of the Valdera Product is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.
b) Customer will (i) be responsible for all use of the Valdera Product under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Valdera Product and notify Valdera promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Valdera Product and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Valdera Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Valdera will have no liability for such failure (including under any service level agreement).
c) will not use the Valdera Product to transmit or provide to Valdera any financial or medical information of any nature, or any sensitive personal data (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers and credit card numbers).
d) Customer shall be responsible for the content of all communications sent by its users via the Valdera Product. Customer agrees that it will not use the Valdera Product to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) constitutes or encourages conduct that could constitute a criminal offense.
e) Suppliers that Customer, or Valdera acting on Customer’s behalf, may engage with in connection with Customer’s use of the Valdera Product are third parties, and Customer is solely responsible for its own relationships and interactions with Suppliers and for entering into any agreements with Suppliers. Valdera is not responsible, and hereby expressly disclaims any liability for, Suppliers’ products, acts or omissions, including any use by Suppliers of Customer Data.
2.4 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Valdera and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
2.5 Free Trial. If you register for a free trial of the Valdera Product, Valdera will make the Valdera Product or any part of it available to you trial basis free of charge (“Free Trial”) until the earlier of (a) the end of the applicable trial period, (b) the start date of any subscription to the Valdera Product that you purchase pursuant to an Order Form, or (c) any termination of the Free Trial by Valdera for any reason, or for no reason at all, by sending you a termination notice with immediate effect.
THE FREE TRIAL IS PROVIDED “AS IS” FOR LIMITED EVALUATION AND TESTING PURPOSES ONLY, AND VALDERA DOES NOT WARRANT THAT THE FREE TRIAL WILL OPERATE WITHOUT ERROR OR INTERRUPTION. VALDERA SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE, AND VALDERA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE VALDERA PRODUCT FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE VALDERA’S LIABILITY WITH RESPECT TO THE VALDERA PRODUCT PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00.
- Fees
3.1 Fees. Customer will pay Valdera the fees set forth in the applicable Order Form. Customer shall pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice, unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
3.2 Late Payment. Valdera may suspend access to the Valdera Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Valdera has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Valdera.
3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Valdera. Customer will not withhold any Taxes from any amounts due to Valdera.
- Proprietary Rights
4.1 Proprietary Rights. As between the parties, Valdera exclusively owns all right, title and interest in and to the Valdera Product, System Data, metadata of Customer Data where Customer Data is not disclosed or identifiable and Valdera’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the Valdera Product by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information. “System Data” means data collected by Valdera regarding the Valdera Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Valdera Product.
4.2 Feedback. Customer may from time to time provide Valdera suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Valdera Product. Valdera will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Valdera will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.3 Product Improvement and Aggregated Statistics. Customer further agrees that Valdera has the right to aggregate, collect and analyze Customer Data and other information relating to the performance of the Valdera Product and shall be free (during and after the term hereof) to (i) use such data and other information to improve Valdera’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
- Confidentiality; Restrictions
5.1 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5.2 Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Valdera Product; (b) attempt to probe, scan or test the vulnerability of the Valdera Product, breach the security or authentication measures of the Valdera Product without proper authorization or willfully render any part of the Valdera Product unusable; (c) use or access the Valdera Product to develop a product or service that is competitive with Valdera’s products or Product or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Valdera Product or otherwise offer the Valdera Product on a standalone basis; or (e) otherwise use the Valdera Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
- Warranties and Disclaimers
6.1 Valdera. Valdera warrants that it will, consistent with prevailing industry standards, provide the Valdera Product in a professional and workmanlike manner and the Valdera Product will conform in all material respects with the Documentation. For material breach of the foregoing express warranty, Customer’s exclusive remedy shall be the re-performance of the deficient Valdera Product or, if Valdera cannot re-perform such deficient Valdera Product as warranted within thirty (30) days after receipt of written notice of the warranty breach, Customer shall be entitled to terminate the applicable Order Form and recover a pro-rata portion of the prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.
6.2 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, including Customer Data, and to permit Valdera to use the same as contemplated hereunder.
6.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE VALDERA PRODUCT IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S PURCHASING SYSTEMS AND PROCESSES. VALDERA DOES NOT REPRESENT OR WARRANT THAT THE VALDERA PRODUCT WILL BE ERROR-FREE. VALDERA IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT OR NON-VALDERA PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION OR CONTENT AVAILABLE IN ITS DISCRETION.
6.4 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH VALDERA WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY VALDERA. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. VALDERA DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR VALDERA MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.
- Indemnification
7.1 Indemnity by Valdera. Valdera will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Valdera Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Valdera) in connection with any such Claim; provided that (a) Customer will promptly notify Valdera of such Claim, (b) Valdera will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Valdera may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Valdera in connection therewith. If the use of the Valdera Product by Customer has become, or in Valdera’s opinion is likely to become, the subject of any claim of infringement, Valdera may at its option and expense (i) procure for Customer the right to continue using and receiving the Valdera Product as set forth hereunder; (ii) replace or modify the Valdera Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. Valdera will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Valdera Product by Customer not in accordance with this Agreement; (C) modification of the Valdera Product by or on behalf of Customer; (D) Customer Confidential Information or (E) the combination, operation or use of the Valdera Product with other products or services where the Valdera Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Valdera’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
7.2 Indemnification by Customer. Customer will defend Valdera against any Claim made or brought against Valdera by a third party arising out of the Excluded Claims, and Customer will indemnify Valdera for any damages finally awarded against Valdera (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Valdera will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Valdera’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Valdera of all liability) and (c) Valdera reasonably cooperates with Customer in connection therewith.
- Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 (INDEMNIFICATION), A BREACH OF SECTION 5 (CONFIDENTIALITY; RESTRICTIONS) (EXCEPT FOR ANY CLAIMS OR LIABILITY RELATED TO CUSTOMER DATA), OR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
- Term and Termination
9.1 Term of Agreement. Unless terminated earlier as expressly permitted by this Agreement, this Agreement shall commence on the Effective Date and continue until all Order Forms hereunder have expired or been terminated (“Term”).
9.2 Term of Order Forms. Upon the expiration of the Initial Term of an Order Form, the Order Form shall be automatically renewed for successive one-year terms, unless either party gives written notice to the other at least thirty (30) days prior to the end of the Initial Term, or the then-current renewal term, as applicable, of such party’s intention not to renew such Order Form (email acceptable).
9.3 Termination for Cause. This Agreement or any Order Form may be terminated before the expiration date of the Term for cause on written notice:
a) by Valdera, if Customer fails to pay any amount when due hereunder and such failure continues for fifteen (15) days after Customer receipt of written notice of nonpayment
b) by either party, if the other party materially breaches any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching party within thirty (30) days after the breaching party's receipt of written notice of such breach
9.4 Termination for Insolvency. This Agreement or any Order Form may be terminated before the expiration date of the Term by either party, if the other party (A) becomes insolvent, (B) is generally unable to pay, or fails to pay, its debts as they become due, (C) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, (D) makes or seeks to make a general assignment for the benefit of its creditors, or (E) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business.
9.5 Duties upon Termination. If Valdera terminates this Agreement or any Order Form for cause pursuant to section 9.3 or due to Customer’s insolvency pursuant to Section 9.4, Customer shall not receive a refund of any fees Customer previously paid to Valdera and Customer shall be invoiced for all fees remaining in the Initial Term or then-current renewal term. If Customer terminates this Agreement or any Order Form for cause pursuant to Section 9.3(b) or due to Valdera’s insolvency pursuant to Section 9.4, Valdera will provide Customer with a refund in an amount equal to (i) the fees Customer actually paid to Valdera with respect to the then-current period of the Initial Term or the renewal term, as applicable, under the Agreement or the Order Form being terminated, as applicable, multiplied by (ii) the quotient of A divided by B , where A equals the number of months remaining in the Initial Term or renewal term, as applicable, as of the effective date of such termination, and B equals the total number of months of the Initial Term or renewal term, as applicable. Upon termination for any reason, Valdera shall cease providing access to the Valdera Product, and (ii) promptly return all of Customer’s Confidential Information. Upon termination for any reason, Customer shall pay for all use of the Valdera Product rendered through the date of termination.
9.6 Survival. Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.
- General
10.1 Publicity. Customer agrees that Valdera may refer to Customer’s name and trademarks in Valdera’s marketing materials and website; however, Valdera will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
10.2 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.3 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.4 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.5 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.6 Governing Law. This Agreement will be governed by the laws of the State of Delaware, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.7 Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant account system administrator designated by Customer.
10.8 Entire Agreement. This Agreement comprises the entire agreement between Customer and Valdera with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Valdera, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency between any Order Form and this Agreement, the applicable Order Form shall govern.
10.9 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.10 Government Terms. Valdera provides the Valdera Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Valdera Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Valdera Product was developed fully at private expense.
10.11 Interpretation. For purposes hereof, “including” means “including without limitation”.
