Oct 20, 2022
OMT Master Service Agreement
This Master Service Agreement (“Agreement”) between Tevora, Inc., a California corporation, with its principal place of business at 17875 Von Karman, Suite 100, Irvine, CA 92614 (“Tevora” or “we” or “us” or “our”) and you (“Customer” or “your”) apply to the
purchase of licenses and subscriptions for our Products. By clicking on the appropriate button, or by downloading, installing, accessing, or using the Products, you agree to this Agreement. If you are entering into this Agreement on behalf of Customer, you represent that you have the authority to bind Customer. If you do not agree to this Agreement, or if you are not authorized to accept the Agreement on behalf of the Customer, do not download, install, access, or use any of the Products.
This Agreement consists of, collectively, this Agreement, any applicable Service Level Agreement, and any Order for Products. In the event of any conflict between the terms and conditions set forth in this Agreement and those set forth in an Order, the terms and conditions of such Order shall control.
- “CCPA” means the California Consumer Privacy Act of 2018.
- “Cloud Services” means the Web-based application services made generally available by us on a subscription basis and provided to you as specified on the applicable Order.
- “Customer” means the authorized party executing this Agreement and, to the extent specified on any Order hereunder, its affiliates (including parents, subsidiaries, and other entities controlling or under common control with any of such entities); provided however, that, in each case, Customer shall be solely responsible for ensuring compliance with the applicable terms and conditions of the Agreement and Customer shall remain liable for any breach of such terms and conditions by its affiliates.
- “Customer Content” means any and all data submitted to or collected by the Products by or on behalf of Customer.
- “Delivery” means the date the applicable Product is made available to you for access and use.
- “Documentation” means any relevant online user guides, documentation, and help and training materials published on our website or accessible through the applicable Product or other means, as may be updated by us from time to time.
- “Fees” means the fees that are applicable to a Product, as identified in the Order.
- “GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data) as updated, amended or replaced from time to time.
- “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented by the Health Information Technology for Economic and Clinical Health Act.
- “Internal Business Purpose” means your use of a Product for your own internal business operations involving the analysis, monitoring, or processing of your data from your systems, networks, and devices. Internal Business Purpose does not include any use that involves providing services to, or processing data for, any third party.
- “ITAR Data” means information protected by the International Traffic in Arms Regulations.
- “Open Source Software” means software that is licensed under a license approved by the Open Source Initiative or similar freeware license, with terms requiring that such software code be (i) disclosed or distributed in source code or object code form, (ii) licensed for the purpose of making derivative works, and/or (iii) redistributed under the same license terms.
- “Orders” means our ordering document (including online order form) accepted by you via your purchase order or other ordering document submitted to us to order Products, which references the Product, Quantity, pricing, and other applicable terms. Orders do not include any preprinted terms on your purchase order or other terms on a purchase order that are additional or inconsistent with this Agreement.
- “PCI Data” means credit card information within the scope of the Payment Card Industry Data Security Standard.
- “PHI” means any protected health data, as defined under HIPAA.
- “Policies” means the policies and documents applicable to us and our Products that are located at the following URL: ephishint.com and are incorporated into this Agreement by reference.
- “Products” means the software, services, and other offerings that we make generally available, including without limitation Software, Cloud Services, Support Services, and Configuration and Implementation Services (if applicable).
- “Purchased Products” means the specific Products that are purchased by you under an Order.
- “Quantity” means measurement of usage of a Product (e.g., the number of computer devices on which the Products are installed, including, but not limited to, laptops, desktops, tablets, point of sale devices, or servers), the number of monitored accounts, virtual CPUs, user seats, use cases, storage capacity, etc. that is purchased, as set forth in the applicable Order.
- “Service Level Agreement” means our policy that applies to the availability and product support of a purchased Cloud Service.
- “Software” means our software programs identified in an Order, including any third-party or Open Source Software, and any updates thereto made available to you by us.
- “Support Services” are the technical support services offered by Tevora for its Software and Services identified in the appropriate Order.
- “Term” means the duration of your subscription or license to the applicable Purchased Product that starts and ends on the date listed on the applicable Order. If no start date is specified in an Order, the start date will be the Delivery date of the Purchased Product.
- “Users” are defined as unique, named users; cannot be shared among users but may be reassigned to replace former Users; and are used for certain Products to limit the maximum use in a calendar month. The number of allowed Users may not be decreased during the Term. Additional Users may be added during a Term at the same pricing as in the applicable Order.
A. Grant of License.
You have the nonexclusive, worldwide, nontransferable, and non-sublicensable right, subject to payment of applicable Fees and compliance with the terms of this Agreement, to use the Purchased Products for your Internal Business Purposes during the Term and up to the Quantity purchased.
B. Trials, Evaluations, and Beta Licenses.
- Trials and Evaluations. Products provided for trials and evaluations, as specified in an Order, are provided at no charge, and their use will be for the limited duration specified therein.
- Beta Licenses. Trials and Evaluations. Products provided for trials and evaluations, as specified in an Order, are provided at no charge, and their use will be for the limited duration specified therein.
- Limitations. Notwithstanding anything to the contrary in this Agreement, we do not provide maintenance and support, warranties, or indemnification for trials, evaluations, or Beta Products.
By accepting this Agreement, you agree to the use of your name, logo, and other identifying information for marketing purposes by us, such as the publications of your logo on our website or a press release announcing the relationship and manner in which you use our Products. You agree to not unreasonably withhold support for such efforts.
A. Grant of Rights for Cloud Services.
We will make the Cloud Services available to you in accordance with this Agreement, and hereby grant Customer the right to access and use the Cloud Services for its Internal Business Purpose for the Term and in the Quantity identified in an Order. For clarity, the Cloud Services may include and require the use of Software.
B. Your Responsibility.
You are responsible for obtaining and maintaining all telecommunications, broadband, and computer equipment and services needed to access and use Cloud Services, and for paying all associated charges. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of Customer Content. You are responsible for routine archiving and backing up of Customer Content. You are responsible for identifying and authenticating all users of the Cloud Services, for controlling unauthorized access, and for maintaining the confidentiality of usernames, passwords, and account information. You are responsible for all activities that occur under your usernames, passwords, or accounts or as a result of Your access to the Cloud Services. You agree to notify Tevora immediately if you believe that an unauthorized third party may be using your accounts or if your account information is lost or stolen.
C. Data Restrictions
In addition to all the other obligations and restrictions contained in this Agreement and any Orders, Customer may not transmit and/or store PHI Data, PCI Data, or ITAR Data within the Cloud Services.
D. Return of Customer Content.
Customer Content may be retrieved by you and removed from the Cloud Services in accordance with the applicable Documentation. We will make the Customer Content available on the Cloud Services for thirty (30) days after termination of the applicable Cloud Services for your retrieval. After that thirty (30) day period, we will have no obligation to maintain the storage of your Customer Content, and you hereby authorize us thereafter to delete all remaining Customer Content, unless a longer retention period is required or permitted by law. If you require assistance in connection with migration of your Customer Content, depending on the nature of the request, we may require a mutually agreed-upon fee for assistance.
E. Suspension of Service.
In the event of a breach or threatened breach of Section 3.C or the use restrictions contained in Section 6, we may, without limiting our other rights and remedies, suspend your use of the Cloud Service until such breach is cured or we reasonably believe there is no longer a threat. Suspension of a Cloud Service will have no impact on the duration of the Term of the Purchased Product or the associated Fees owed.
Contractors and Third-Party Providers
You may permit your authorized consultants, contractors, and agents (“Third-Party Providers”) to access and use your Purchased Products, but only on your behalf in connection with providing services to you, and subject to the terms and conditions of this
Agreement. Any access or use by a Third-Party Provider will be subject to the same limitations and restrictions that apply to you under this Agreement, and you will be responsible for any Third-Party Provider’s actions relating to their use of the Purchased
Products. The aggregate use by you and all of your Third-Party Providers must not exceed the Quantity purchased, and nothing in this Section is intended to or will be deemed to increase such Quantity.
Support and Maintenance
Your Purchased Products may include technical support and maintenance services as part of your purchase. Included services are documented in the applicable Service Level Agreement. Optional Support Services purchased will be identified in the applicable Order.
Except as expressly permitted in an Order or the Documentation, you agree not to (nor allow any third party to): (a) reverse engineer (except to the extent specifically permitted by statutory law), decompile, disassemble, or otherwise attempt to discover source code or underlying structures, ideas, or algorithms of any Product; (b) modify, translate, or create derivative works based on the Products; (c) use a Product for service bureau or outsourcing purposes, or for any purpose other than your own Internal Business Purposes; (d) resell, transfer, or distribute any Product; (e) access or use any Product in order to monitor its availability, performance, or functionality for competitive purposes; (f) attempt to disable or circumvent any technological mechanisms or measures intended to prevent, limit, or control use or copying of, or access to, Products; (g) separately use any of the applicable features and functionalities of the Products with external applications or code not furnished by Tevora; (h) exceed the Quantity purchased; or (i) use any Product in violation of applicable laws and regulations (including but not limited to any applicable
privacy and intellectual property laws). In addition, You agree not to use or permit use of the Products 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, or (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters.
Privacy and Security
A. Protection of Customer Content.
We will take reasonable and appropriate technical and organizational measures designed to protect Customer Content against
unauthorized access, accidental loss or damage, and unauthorized destruction. The security provided by us shall be in accordance with our information security policies. As further specified in such information security policies, we will maintain administrative,
B. Use of Customer Content.
Except as expressly permitted by this Agreement or any applicable Order, we shall not use Customer Content other than as necessary to provide the Purchased Products to Customer pursuant to Customer’s Order. We will not disclose Customer Content outside of us except: (i) as Customer directs; (ii) as described in this Agreement; or (iii) as required by law.
In the course of providing the Cloud Service to Customer, Tevora may collect, maintain and/or generate information derived from Customer’s use of the Cloud Services or through Tevora’s provision of the Cloud Services, provided that (a) such information has been anonymized in accordance with industry standards and any applicable laws and (b) neither Customer nor any natural person can be identified through analysis of the information (“Derivative Data”). Derivative Data is not Customer Content, and Tevora may process Derivative Data for purposes other than the performance of the Cloud Services.
You agree to pay all Fees specified in the Orders. Fees are due and payable net 30 from the date of invoice and are non-cancellable and non-refundable, except as otherwise expressly set forth in this Agreement.
Fees do not include applicable taxes. You are responsible for paying any taxes or similar government assessments including, without limitation, value-added, sales, use, or withholding taxes, but not including taxes based on our net income.
C. Usage Verification.
Within thirty (30) days of Tevora’s request, Customer agrees to certify to its compliance with the Quantity restrictions set forth in this Agreement and any Order, or to allow Tevora or its approved designee to inspect Customer’s data processing systems and records to verify such compliance. Tevora may review Customer’s usage of the Cloud Services to determine Customer’s compliance with the Quantity restrictions of this Agreement and any Order. Tevora will promptly notify Customer if Tevora (or a Customer certification) determines that Customer’s usage of the Products exceeds purchased Quantity, and if so, Customer shall promptly pay to Tevora additional Fees applicable to such prior over-usage, and either: (i) immediately discontinue any such overuse; or (ii) purchase such additional Quantity to cover Customer’s actual usage going forward, at Tevora’s then current charges.
A. Software Warranty.
Tevora warrant that for a period of ninety (90) days from the Delivery of Software, the Software will substantially perform the material functions described in the applicable Documentation for such Software, when used in accordance with the applicable Documentation. Tevora sole liability, and your sole remedy, for any failure of the Software to conform to the foregoing warranty, is for Tevora to, at its sole discretion, either (i) repair, replace, or modify the Software so that it conforms to the foregoing warranty or (ii) terminate the applicable Order for the non-conforming Software and refund the Fees actually paid by you for such non-conforming Software.
B. Cloud Services Warranty.
Tevora warrants that the Cloud Services will perform materially in accordance with the applicable Documentation. Our sole and exclusive liability, and your sole and exclusive remedy for any breach of these warranties, will be your right to terminate the applicable Cloud Services Purchased Product, and we will refund to you any prepaid but unused Fees for the remainder of the Term.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED “AS IS” WITH NO WARRANTIES OR REPRESENTATIONS WHATSOEVER, EXPRESS OR IMPLIED. TEVORA AND ITS OUR SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. TEVORA DOES NOT WARRANT THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED, ERROR FREE OR SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED.
Limitation of Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA, LOST PROFITS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF TEVORA AND ITS THIRD-PARTY SUPPLIERS IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO TEVORA DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO LIABILITY ARISING FROM A BREACH OF SECTIONS 3.C. 7, 12, 15 OR ANY VIOLATIONS OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
A. Tevora Indemnification Obligation.
Tevora will defend and indemnify Customer, and pay the resulting cost and damages (including attorneys’ fees) finally awarded
against Customer by a court of competent jurisdiction or the amount stated in a written settlement signed by Tevora, to the extent a claim, demand, suit, or proceeding is made or brought against Customer by a third party alleging that a Purchased Product infringes such third party patents, copyrights, trademarks, or trade secrets (a “Customer Claim”). Tevora will have no obligation under the foregoing provision to the extent a Customer Claim arises from (i) Customer’s breach of this Agreement, Customer Content, or the combination of the Products or any part thereof with other equipment, software, or products not supplied by Tevora (if such infringement or misappropriation would not have occurred but for such combination) or (ii) Customer’s failure to install an update or upgrade, where same would have avoided such claim. If a final injunction is obtained against Customer’s right to continue using the Purchased Product or, if in Tevora opinion a Purchased Product is likely to become the subject of a claim, then Tevora may, in sole discretion, but at no cost to you: (1) obtain the right for Customer to continue to use the Purchased Product; (2) replace or modify the Purchased Product so that it no longer infringes but functions in a materially equivalent manner; or (iii) if Tevora determine that neither of these alternatives is reasonably available, terminate the applicable license of Software or subscription for Cloud Service and refund any prepaid, unused Fees applicable to the infringing Purchased Product. With respect to Third-Party Software solely that is used: (a) in unmodified form; (b) as part of or as required to use a Product; and (c) in accordance with the terms and conditions herein and the applicable license grant, Tevora will indemnify You for infringement to the same extent as Tevora is required to provide infringement indemnification for the Products as stated above.
B. Customer’s Indemnification Obligation.
Customer will defend and indemnify Tevora, and pay the resulting cost and damages (including attorneys’ fees) finally awarded against Tevora by a court of competent jurisdiction or the amount stated in a written settlement signed by Customer, to the extent a claim, demand, suit, or proceeding is made or brought against Tevora by a third party that: (i) alleges that Customer Content infringes or misappropriates such third-party patents, copyrights, trademarks, or trade secrets; or (ii) alleges that your Customer Content violates applicable law or regulation.
C. Mutual Indemnity.
Each party will defend and indemnify any action brought against the other party by a third party to the extent that it is based upon a claim for bodily injury (including death) to any person or damage to tangible property resulting from the negligent acts or willful misconduct of the indemnifying party or its personnel hereunder, and will pay any reasonable, direct, out-of-pocket costs, damages, and reasonable attorneys’ fees attributable to such claim that are finally awarded against the indemnified party by a court of competent jurisdiction or the amount stated in a written settlement signed by the indemnifying party.
D. Process for Indemnification.
The indemnification obligations above are subject to the party seeking indemnification: (i) providing the other party with prompt written notice of the specific claim; (ii) giving the indemnifying party sole control of the defense and settlement of the claim (except that the indemnifying party may not settle any claim that requires any action or forbearance on the indemnified party’s part without their prior consent, which will not be unreasonably withheld or delayed); and (iii) giving the indemnifying party all reasonable assistance, at such party’s expense.
This section provides the parties’ exclusive remedy for any infringement claims or damages.
Modification of Cloud Services and Policies
Notwithstanding anything to the contrary in this Agreement, from time to time at its sole discretion, Tevora may make upgrades, changes, and/or improvements to: (i) the Products, including the Cloud Services or (ii) the Policies. Notwithstanding the foregoing, except as is required as a result of changes to applicable laws or regulations, Tevora will not modify any Products or Policies in any way designed to: (a) materially degrade the Products or Policies or (b) add additional material obligations for Customer.
Certain Products may contain third-party or Open Source Software. Tevora makes available in the applicable Documentation a list of third-party or Open Source Software incorporated in our Products as required by the respective licenses. Any third-party or Open Source Software that is delivered as part of the Product and which may not be removed or used separately from the Product is covered by the warranty, support, and indemnification provisions applicable to the Product or as specified in this Agreement. Some of the third-party or Open Source Software may have additional terms that apply to the use of the Product (e.g., the obligation for us to provide attribution of the specific licensor), and those terms will be included in the Documentation; however, these terms will not impose any additional restrictions on use of the Product.
A. Confidential Information. As used in this Agreement, “Confidential Information” means all information of either party that is not generally known to the public, whether of a technical, business, or other nature, that is disclosed by one party to the other party or that is otherwise learned by the recipient in the course of its activities with the disclosing party, and that has been identified as being proprietary and/or confidential or that the recipient reasonably ought to know should be treated as proprietary and/or confidential under the circumstances of disclosure. Confidential Information of Tevora also includes the terms, conditions, and pricing of this Agreement, and the results of any benchmarking, testing, or competitive evaluations Customer performs on the Products. Each party shall use reasonable care to hold the other party’s Confidential Information in confidence and not disclose such Confidential Information to anyone other than to its personnel, contractors, attorneys, and accountants with a need to know and who are under a duty of confidentiality no less restrictive than the recipient’s duty hereunder. A recipient shall not reproduce or use such information for any purpose other than as reasonably required to perform pursuant to this Agreement or as reasonably necessary for use of the Products as contemplated by this Agreement. Either party may disclose the existence and nature of the relationship between the parties established hereby, provided it does not disclose any of the specific terms of such relationship.
B. Exceptions. The obligations of either party pursuant to this Section shall not extend to any information that: (i) recipient can demonstrate through written documentation was already known to the recipient prior to its disclosure to the recipient; (ii) was or becomes known or generally available to the public (other than by act of the recipient); (iii) is disclosed or made available in writing to the recipient by a third party having a bona fide right to do so; (iv) is independently developed by recipient without the use of any Confidential Information; or (v) is required to be disclosed by process of law, provided that the recipient shall notify the disclosing party promptly upon any request or demand for such disclosure.
C. Injunctive Relief. The parties acknowledge that any breach of this Section may cause immediate and irreparable injury to the non-breaching party for which monetary damages may be inadequate, and in the event of such breach, the non-breaching party shall be entitled to seek injunctive relief, in addition to all other remedies available to it by law or in equity.
A. Products. As between you and Tevora, Tevora owns and reserves all right, title, and interest in and to the Products and other Tevora materials, including all intellectual property rights therein. We retain rights in anything delivered or developed by us or on our behalf under this Agreement. No rights are granted to you other than as expressly set forth in this Agreement.
B. Customer Content. You own and reserve all right, title and interest in your Customer Content. By sending Customer Content to a Cloud Service, you grant us a worldwide, royalty free, non-exclusive license to access and use the Customer Content for purposes of providing you the Cloud Service and any Support Services associated therewith.
Term and Termination
A. Term. This Agreement will commence upon the Effective Date and will remain in effect until the expiration of the Term of all applicable Purchased Products, unless earlier terminated pursuant to this Section. Termination with respect to a specific Purchased Product will not affect the Term of any other Purchased Product. Termination of this Agreement will have the effect of terminating the term of all Purchased Products.
B. Termination. Either party may terminate this Agreement, or any Purchased Product, by written notice to the other party in the event of a material breach of this Agreement, or the specific terms associated with that Purchased Product, that is not cured within thirty (30) days of receipt of the notice. Upon any expiration or termination of a Purchased Product, the rights and licenses granted to you for that Purchased Product will automatically terminate, and you agree to immediately (i) cease using and accessing the Product; (ii) return or destroy all copies of any Software, and other Tevoramaterials, and Tevora Confidential Information in your possession or control; and, (iii) upon our request, certify in writing the completion of such return or destruction. Upon termination of this Agreement or any Purchased Product by Tevora for Customer breach, Tevora will have no obligation to refund any Fees or other amounts received from you during the Term. In the event of termination by you for Tevora breach, Tevora will refund you any prepaid unused Fees covering the remainder of the Term for the terminated Purchased Products after the effective date of termination.
C. Survival. The termination or expiration of this Agreement will not affect any provisions herein which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, ownership of intellectual property, confidentiality, payment obligations, effect of termination, limitation of liability, privacy, and the “Miscellaneous” section in this Agreement.
Compliance with Laws; Export
Each party shall comply with all laws, rules, and regulations applicable to that party in connection with this Agreement, including all applicable export and import control laws and regulations. Neither party shall export or re-export Products without all required government licenses, and each party agrees to comply with the export laws, restrictions, national security controls, and regulations of all the applicable government agencies or authorities. Customer shall not export, reexport, or transfer, directly or indirectly, any information, process, product, technology, funds, or services to countries or territories specified as prohibited destinations under U.S. trade control laws or as otherwise prohibited by U.S. trade control laws, including the economic sanctions and export control laws and regulations administered by the U.S. Department of Commerce, U.S. Department of the Treasury, and U.S. Department of State.
This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Orange County, California, and the parties hereby consent to personal jurisdiction and venue therein. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention for the International Sale of Goods will apply to this Agreement.
A. Assignment. Neither party may assign, delegate, or transfer this Agreement, in whole or in part, by agreement, operation of law, or otherwise without the prior written consent of the other party; however, Tevora may assign this Agreement in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of Tevora assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns.
B. Notices. Any notice must be in writing and sent by certified letter, receipted commercial courier, or e-mail transmission and shall be deemed given on the date received by the recipient, except that Tevora may provide notice of changes to Policies, if required, via written announcement on its customer portal or company web site, which shall be deemed given on the date of such announcement. Any party may from time to time change such address or individual by giving the other party notice of such change in accordance with this Section.
C. Waiver; Severability. The waiver by either party of a breach or a default under this Agreement will not be effective unless in writing. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
D. Independent Contractors; No Third-Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries of this Agreement. Neither party has the authority to bind or act on behalf of the other party in any capacity or circumstance whether by contract or otherwise.
E. Force Majeure. Except for fees accrued prior to the Force Majeure event, neither party will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond their reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, electrical, telecommunications, or other utility failures, earthquake, storms, or other elements of nature, blockades, embargoes, riots, acts or orders of government, acts of terrorism, or war. If either party is unable to perform their obligations under this Agreement due to any such event for more than 30 days, then, with written notice, the other party may terminate this Agreement in accordance with Section 6 above, provided however that in no event shall the payment obligation for fees accrued be excused.
F. Integration; Entire Agreement. This Agreement, along with any additional terms incorporated herein by reference (including information contained in a URL or referenced policy), together with applicable Orders, constitute the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. Except as otherwise expressly set forth herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.