CLOUD SERVICES LICENSE AGREEMENT
BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE ACCEPTING
THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT
INCORPORATES THIS LICENSE, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AND THEAGREEMENT. IF YOU ARE ENTERING INTO THIS LICENSE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS LICENSE AND, IN
SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS LICENSE SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS LICENSE, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICES.
This Cloud Services License Agreement (the “License”), is between SCHERTZ AND JENNINGS, LLC, a Virginia limited liability company (the “Company”), and the individual or entity that has executed this License (“You”). This License sets forth the terms and conditions that govern your use of the Company’s OptimOrder software.
All capitalized terms used herein but not defined have the meaning assigned in the Services Agreement between the Company and _________________ (the “Agreement”).
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:
1. Services Agreement Incorporation by Reference.
The rights and permissions granted in as well as the other terms and conditions of this License are subject to the terms and conditions of the Agreement, which is hereby incorporated by reference.
2. Term.
This Agreement is valid for the Term of the Agreement, which this License accompanies. This License may also be referenced for any purchase that increases the quantity of the original Services ordered (e.g., additional Users), for any OptimOrder options offered by the Company for the original Services ordered, and for any renewal of the Term of the original order.
3. Rights Granted.
3.1 For the duration of the Term and subject to Your payment obligations, and except as otherwise set forth in this Agreement or Your order, You have the non-exclusive, nonassignable, royalty free, revocable, worldwide limited right to access and use the Services that You ordered, including anything developed by Company and delivered to You as part of the Services, solely for Your internal business operations and subject to the terms of this Agreement and Your order, including the Service Specifications. You may allow Your employees, contractors, and end users, as applicable, authorized by You or on Your behalf to use the Services in accordance with the Agreement and Your order (“Users”) to use the Services for this purpose and You are responsible for Your Users’ compliance with this Agreement and the order. You understand that the Services and Your Content (as defined Section 4.1) will be stored and hosted on the Company’s Services Environment (as defined in Section 3.3).
3.2 You do not acquire under this Agreement any right or license to use the Services, including the Services Environment, in excess of the scope and/or duration of the Services stated in Your order. Upon the end of the Term, Your right to access and use the Services will terminate.
3.3 To enable Company to provide You and Your Users with the Services, You grant Company the right to use, process and transmit, in accordance with this Agreement and Your order, Your Content for the duration of the Term plus any additional post-termination period during which Company provides You with access to retrieve an export file of Your Content. If your use of the Services includes any integration or interaction with third party programs, You acknowledge that Company may allow providers of those third party programs to access the hardware and software components owned, licensed or managed by Company to which Company grants You and Your Users access as part of the Services (the “Services Environment”), including Your Content, as required for the interoperation of such third party programs with the Services. Company will not be responsible for any use, disclosure, modification or deletion of Your Content or Your Applications resulting from any such access by third party program providers or for the interoperability of such third party programs with the Services. Company may, in its sole discretion, allow or disallow any integration or interaction with third party programs for any reason.
3.4 You acknowledge that Company has no delivery obligation for Company
Programs and will not ship copies of such programs to You as part of the Services.
3.5 The Services may contain or require the use of third party technology that is licensed under a separate agreement not under the terms of this License (“Separately Licensed Third Party Technology”). You are responsible for complying with the separate terms specified by Company that govern your use of Separately Licensed Third Party Technology. Company may provide certain notices to You in the Service Specifications, Program Documentation, readme or notice files in connection with such Separately Licensed Third Party Technology. The third party owner, author or provider of such Separately Licensed Third Party Technology retains all ownership and intellectual property rights in and to such Separately Licensed Third Party Technology.
3.6 As part of certain Services offerings, Company may provide You with access to
Third Party Content within the Services Environment. The type and scope of any Third Party Content is defined in Your Order. The third party owner, author or provider of such Third Party Content retains all ownership and intellectual property rights in and to that content, and Your rights to use such Third Party Content are subject to, and governed by, the terms applicable to such content as specified by such third party owner, author or provider.
4. Ownership and Restrictions.
4.1 You retain all ownership and intellectual property rights in and to Your Content. As used in this License “Your Content” shall mean all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format provided by You or Your Users that reside in, or run through, the Services Environment. Company or its licensors retain all ownership and intellectual property rights to the Services, and derivative works thereof, and to anything developed or delivered by or on behalf of Company under this License.
4.2 You may not, or cause or permit others to:
(a) Remove or modify any program markings or any notice of Company’s or
its licensors’ proprietary rights;
(b) Make the programs or materials resulting from the Services (excluding Your Content) available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific Services You have acquired);
(c) Modify, make derivative works of, disassemble, decompile, or reverse
engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to Company;
(d) Perform or disclose any benchmark or performance tests of the Services
without Company’s prior written consent;
(e) Perform or disclose any of the following security testing of the Services
Environment or associated infrastructure without Company’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and
(f) License, sell, rent, lease, transfer, assign, distribute, display, host,
outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Services Environments or materials available, to any third party, other than as expressly permitted under the terms of the applicable order.
4.3 The rights granted to You under this Agreement are also conditioned on the following:
(a) Except as expressly provided herein or in Your order, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
(b) You make every reasonable effort to prevent unauthorized third parties
from accessing the Services
5. Service Specifications.
5.1 The Services are subject to and governed by Service Specifications applicable to Your Order. Service Specifications may define provisioning and management processes applicable to the Services (such as capacity planning), types and quantities of system resources (such as storage allotments), functional and technical aspects of the Services, as well as any Services deliverables. You acknowledge that use of the Services in a manner not consistent with the Service Specifications may adversely affect Services performance and/or may result in additional fees. If the Services permit You to exceed the ordered quantity (e.g., soft limits on counts for Users, sessions, storage, etc.), then You are responsible for promptly purchasing additional quantity to account for Your excess usage. For any month that You do not promptly purchase such additional quantity, Company may require You to pay, in addition to the fees for the additional quantity, an excess usage fee for those Services equivalent to 10% of the total fees for the month in which such excess usage occurred.
5.2 Company may make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, etc.) during the Term, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third Party Content. The Service Specifications are subject to change at Company’s discretion; however, Company changes to the Service Specifications will not result in a material reduction in the level of performance or availability of the applicable Services provided to You for the duration of the Term.
6. Use of the Services.
6.1 You are responsible for identifying and authenticating all Users, for approving access by such Users to the Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Your and Your Users’ usernames, passwords and accounts with Company, You accept responsibility for the timely and proper termination of user records in Your local (intranet) identity infrastructure or on Your local computers. Company is not responsible for any harm caused by Your Users, including individuals who were not authorized to have access to the Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Your local identity management infrastructure or Your local computers. You are responsible for all activities that occur under Your and Your Users’ usernames, passwords or accounts or as a result of Your or Your Users’ access to the Services, and agree to notify Company immediately of any unauthorized use.
6.2 You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Your Content and all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of Company and made available to You through, within, or in conjunction with Your use of, the Services (collectively, “Third Party Content”), for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Company under this Agreement, Company reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material. Company shall have no liability to You in the event that Company takes such action. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your Content. You agree to defend and indemnify Company against any claim arising out of a violation of Your obligations under this section.
6.3 You are required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services as such Patches are generally released by Company as described in the Service Specifications. Except for emergency or security related maintenance activities, Company will coordinate with You the scheduling of application of Patches, where possible, based on Company’s next available standard maintenance window.
7. Disclaimer of Warranties.
It is Your sole and exclusive responsibility to determine the suitability of any and all products and Services for Your intended purposes and uses. You understand and agree that Company’s provision of the Services does not guarantee or ensure success to Your endeavors and that Company does not guarantee any such success. Company makes no representation or warranty that (i) the Services will meet Your needs, or (ii) the Services will achieve Your desired result. You acknowledge and agree that the Services are provided on an “as is” basis, without warranties of any kind express or implied. COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICES OR THE RESULTS OBTAINED FROM SUCH SERVICES, OTHER THAN ANY EXPRESSLY SET FORTH HEREIN. NO REPRESENTATIVE OF COMPANY IS AUTHORIZED TO GIVE OR MAKE ANY OTHER REPRESENTATION OR WARRANTY OR MODIFY THIS AGREEMENT IN ANY WAY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AS WELL AS ALL WARRANTIES ARISING BY USAGE OR COURSE OF PERFORMANCE.
COMPANY DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT COMPANY WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY COMPANY, AND (C) THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT COMPANY DOES NOT 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. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT, YOUR APPLICATIONS OR THIRD PARTY CONTENT. COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT
8. Limitation of Remedies and Damages.
8.1 Limitations. IN NO EVENT WILL COMPANY OR ANY OF ITS LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENT, CONTRACTORS, MEMBERS OR AFFILIATES BE LIABLE TO YOU WITH RESPECT TO THIS AGREEMENT OR ANY PROPOSAL UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, ARISING UNDER THIS AGREEMENT, REGARDLESS OF
THE BASIS OF THE CLAIM AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. COMPANY’S CUMULATIVE LIABILITY TO YOU FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT PAID TO COMPANY BY YOU FOR THE SERVICES THAT CAUSED THE DAMAGES. NO ACTION MAY BE BROUGHT AGAINST COMPANY LATER THAN ONE (1) YEAR FROM THE DATE THE CLAIM AROSE.
8.2 Remedies. Your exclusive remedy for any claim arising out of or relating to this Agreement will be for Company, upon receipt of written notice, either (i) to use commercially reasonable efforts to cure, at its expense, the matter that gave rise to the claim for which Company is at fault, or (ii) return to You the fees paid by You to Company for the particular Service provided that gives rise to the claim, subject to the limitations contained in Section 8.1.
You agree that you will not allege that this remedy fails its essential purpose.
9. Term; End of Services.
9.1 Services provided under this License shall be provided for the Term defined in the Agreement, unless earlier suspended or terminated in accordance with this License or the Agreement.
9.2 Upon the end of the Term, You no longer have rights to access or use the Services, including the associated Services Environments; however, at Your request, and for a period of up to 60 days after the end of the applicable Services, Company will make available to You Your Content as existing in the Services Environment on the date of termination. At the end of such 60 day period, and except as may be required by law, Company will delete or otherwise render inaccessible any of Your Content that remain in the Services Environment.
9.3 Company may temporarily suspend Your password, account, and access to or use of the Services if You or Your Users violate any provision within the ‘Rights Granted’, ‘Ownership and Restrictions’, ‘Use of the Services’, or ‘Export’ sections of this License or any provision of the Agreement, or if in Company’s reasonable judgment, the Services or any component thereof are about to suffer a significant threat to security or functionality. Company will provide advance notice to You of any such suspension in Company’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. Company will use reasonable efforts to re-establish the affected Services promptly after Company determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, Company will make available to You Your Content and Your Applications as existing in the Services Environment on the date of suspension. Company may terminate the Services under the Agreement if any of the foregoing causes of suspension is not cured within 30 days after Company’s initial notice thereof. Any suspension or termination by Company under this paragraph shall not excuse You from Your obligation to make payment(s) under this Agreement.
9.4 If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred. If Company terminates the License as specified in the preceding sentence, You must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses. Except for nonpayment of fees, the nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if You are in default under the Agreement, You may not use those Services ordered.
9.5 Provisions that survive termination or expiration of this Agreement are those relating to disclaimer of warranties, limitation of remedies and damages, indemnity, payment and others which by their nature are intended to survive.
10. Nondisclosure.
10.1 By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the terms and pricing under this Agreement, Your Content residing in the Services Environment, and all information clearly identified as confidential at the time of disclosure.
10.2 The parties agree that Services and the Service Environment, and any confidential and proprietary information, including but not limited to ideas, customer lists, customer contact information, schematics, drawings, charts, source code, computer programs, discussions, data books, records, plans, flow charts, financial data, trade secrets, "know-how," and such other documents and materials disclosed by Company, whether orally or in writing and whether or not specifically identified as confidential regarding the Services or the Services are Confidential Information.
10.3 A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
10.4 We each agree not to disclose each other’s Confidential Information to any third party other than as set forth in the following sentence for the Term and an additional period of three years following the end of the Term; however, Company will hold Your Confidential Information that resides within the Services Environment in confidence for as long as such information resides in the Services Environment. We each may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. Company will protect the confidentiality of Your Content residing in the Services Environment in accordance with the Company security practices defined as part of the Service Specifications applicable to Your order. In addition, Your Content will be treated in accordance with the terms of Section 11 below. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or orders placed under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law. To the extent, this Section and Section 11 below are in conflict, the terms of Section 11 shall prevail.
11. Data Protection; Privacy.
11.1 Company shall use commercially reasonable efforts to maintain a secure data environment and encrypt Your data to render it unusable, unreadable, or indecipherable to unauthorized individuals.
11.2 Company Use of Service Data and Customer Information.
(a) Services Data is data that resides on Company, customer or third-party
systems to which Company is provided access to perform Services (including Cloud environments as well as test, development and production environments that may be accessed to perform Company consulting and support services). Company treats Services Data according to the terms of this policy, and treats Services Data as confidential.
(b) Below are the conditions under which Company may access, collect
and/or use Services Data:
1) Services Data may be accessed and used to perform services under the Agreement and this License for support, consulting, cloud or other services and to confirm your compliance with the terms of the Agreement and this License. This may include testing and applying new product or system versions, patches, updates and upgrades; monitoring and testing system use and performance; and resolving bugs and other issues you have reported to Company. Any copies of services data created for these purposes are only maintained for time periods relevant to those purposes.
2) Company may be required to retain or provide access to services data to comply with legally mandated reporting, disclosure or other legal process requirements.
(c) Company may transfer and access services data globally as required for
the purposes specified above. If Company hires subcontractors to assist in providing services, their access to services data will be consistent with the terms of your order for services and this services privacy policy. Company is responsible for its subcontractors’ compliance with the terms of this policy and your order. Company does not use services data except as stated above or in your order. Company may process services data, but does not control your collection or use practices for services data. If you provide any services data to Company, you are responsible for providing any notices and/or obtaining any consents necessary for Company to access, use, retain and transfer services data as specified in this policy and your order.
(d) Customer Information is information the Company may collect from
your use of the Services including, but not limited to, your name, billing information, and a description of the kinds of activities you conduct through the Services or products that you use.
Customer Information does not include Your Content.
(e) In addition to the functions described above in subsections (b) & (c), the Company may use Customer Information to:
1) Share, sell, or license with the Company’s partners, affiliates, vendors, advertisers, and other third parties for marketing purposes, to aid in the integration of third party services with the Services, or to otherwise improve or enhance the Services.
2) Share with third parties who provide services to Company, such as credit card processing services, order fulfillment, analytics, event / campaign management, web site management, information technology and related infrastructure provision, customer service, e-mail delivery, auditing, and other similar services. When Company shares Customer Information with third party service providers, we require that they use your Customer Information only for the purpose of providing services to us and subject to terms consistent with this Policy.
3) Process your transactions by sharing Customer Information along with, financial, credit card, and payment information.
12. Indemnification. You shall indemnify and hold the Company harmless against any loss or liability to person or property arising out of or related to the Services.
12.1 The Company will notify You, in writing, of any claim, action or proceeding against Company resulting from any act arising out of or relating to the Services.
12.2 To the fullest extent permitted by applicable law, the You agree to indemnify, defend and hold harmless Company and its officers, directors, managers, owners, agents, and employees from and against any and all claims, actions, suits, damages, injuries, losses, fines, penalties, liens, taxes, liabilities and expenses, including but not limited to attorneys’ fees and court costs, arising from or relating to (i) the Services, or (ii) a breach of the Agreement or the License by You or any of your affiliates, subcontractors, agents or employees.
12.3 The aforesaid obligation of indemnity shall be construed so as to extend to all legal, defense and investigation costs, as well as all other reasonable costs, expenses and liabilities incurred by the party indemnified, from and after the time at which the party indemnified receives notification (whether verbal or written) that a claim or demand is to be made or may be made.
13. Assignment
You may not assign the Agreement or this License or give or transfer the Services or an interest in them to another individual or entity. If You grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any deliverables. The foregoing shall not be construed to limit the rights You may otherwise have with respect to Separately Licensed Third Party Technology licensed under open source or similar license terms.
14. Miscellaneous
14.1 License Agreement Updates. Company may update, modify, or change this License from time to time. Upon making any update, Company will post a prominent notice of such update at the login for access to the Services. YOU ARE NOT REQUIRED TO AGREE TO THE TERMS OF ANY UPDATE TO THE LICENSE. IF YOU DO NOT AGREE YOU MUST SELECT THE “I DECLINE” OPTION AND YOU MAY NOT USE THE SERVICES.
14.2 Section Headings. Title and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement.
14.3 Time For Bringing Claims. Except for actions for nonpayment or breach of Company’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one year after the cause of action has accrued.
14.4 Cooperation. You agree to provide Company with all information, access and full good faith cooperation reasonably necessary to enable Company to provide the Services and You will perform the actions identified in Your order as Your responsibilities.
14.5 Regulatory Compliance. You remain solely responsible for Your regulatory compliance in connection with Your use of the Services. You are responsible for making Company aware of any technical requirements that result from Your regulatory obligations prior to entering into an order governed by this License or the Agreement. Company will cooperate with your efforts to determine whether use of the standard Company Services offering is consistent with those requirements. Additional fees may apply to any additional work performed by Company or changes to the Services.
14.6 Audit. Company may audit Your use of the Services (e.g., through use of software tools) to assess whether Your use of the Services is in accordance with Your order. You agree to cooperate with Company’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay within 30 days of written notification any fees applicable to Your use of the Services in excess of Your rights. If You do not pay, Company can end Your Services and/or Your order. You agree that Company shall not be responsible for any of Your costs incurred in cooperating with the audit
14.7 Entire Agreement. This License contains the entire understanding of the parties with respect to its subject matter. This License supersedes all prior discussions, agreements and understandings, written or oral, between the parties with respect to the subject matter hereof. It is expressly agreed that the terms of this Agreement and any Company order shall supersede the terms in any purchase order, procurement internet portal, or other similar non-Company document and no terms included in any such purchase order, portal, or other non-Company document shall apply to the Services ordered. In the event of any inconsistencies between the terms of an order and the Agreement, the order shall take precedence; however, unless expressly stated otherwise in an order, the terms of the Data Processing Agreement shall take precedence over any inconsistent terms in an order. Except as otherwise permitted in Section 5 (Service Specifications) and Section 11 (Data Protection) with respect to the Services, this Agreement and orders hereunder may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the Company Store by authorized representatives of You and of Company. No third party beneficiary relationships are created by this Agreement
14.8 Severability. If any provision of this Agreement, or any portion thereof, is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement, or remaining portions thereof, will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any such provision, or any portion thereof, is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are consummated to the fullest extent possible.
14.9 Governing Law; Forum. Without regard to its conflicts of laws principles, the laws of the Commonwealth of Virginia govern all matters, including torts, with respect to this License. For any litigation, each party irrevocably and unconditionally consents to submit to the exclusive jurisdiction and venue therein of the Courts of ____________, Illinois and of the United States of America located in the ____________ District of Illinois, __________ Division, for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby and agrees that service of any process, summons, notice or document by U.S. certified mail to the address set forth above will be effective service of process for any action, suit or proceeding brought against such party.
