Conservis End User License Agreement
Date of last revision: March 8, 2017
This license agreement (the “Agreement”) is a legal agreement between the Licensee, a single legal entity identified in the registration process provided as part of the sign up form or invitation (“Licensee”, “you”), and Conservis Corp. (“Conservis”, “we”, “our” or “us”). This Agreement governs Licensee’s and your Users’ access to and use of Conservis’ software and related services (collectively, the “Software Services”). Licensee must accept the terms of this License Agreement before accessing or otherwise using the Software Services or any of the other services that may be provided by Conservis under this License Agreement. To access and use our offering, Licensee must have access to the Internet.
By clicking “ACCEPT”, Licensee indicates that it has read and understood, and agrees to the terms of, this Agreement. If the person clicking on the “ACCEPT” button is an individual working for Licensee (“Agent”), such person is agreeing to the terms and conditions of this Agreement on behalf of Licensee and certifies that he/she is an Agent of Licensee and has all necessary authority to act on Licensee’s behalf, including to legally bind Licensee to the terms and conditions of this Agreement.
If Licensee does not agree to the terms of the Agreement, Licensee is not granted any rights whatsoever to use or access the Software Services. If Licensee is not willing to click “ACCEPT” and be bound by these terms and conditions, Licensee should click on the “DECLINE” button, and may not access or otherwise use the Software Services. In the event that Licensee clicks on the “DECLINE” button and does not use or access the Software Services, Conservis shall promptly refund to Licensee the license fee remitted to Conservis by Licensee for this particular instance of the software.
If you are a competitor of Conservis Corp., you may not access the Software Services for any purpose, including monitoring the availability of our services, assessing performance or functionality, or for any other benchmarking or competitive purposes.
Table Of Contents
- Software Services
- Use of Software Services
- Fees and Payments for Software Services
- Proprietary Rights
- Disclaimer of Warranties
- Mutual Indemnification
- Limitation of Liability
- Term, Termination and Copy of Your Data
- Notices, Governing Law, Venue and Arbitration
- General Provisions
“Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between you and us from time to time. Order Forms shall be deemed incorporated herein by reference. Prior to March 1, 2017 ordering documents specifically include (i) Conservis Subscription Agreement, (ii) Conservis Implementation Services Agreement, and/or (iii) Institutional Software Subscription Agreement.
“Our Anonymized Databases” means any and all databases we create by aggregating information (including Your Data) that we gather in the course of providing Software Services and which information has been anonymized so that individual identifiable information is masked. Our Anonymized Databases includes both the aggregated information and any non-identifiable elements from Your Data that are included in the aggregated information.
“Software Services” means the Conservis software-as-a-service components and any other online, Web-based applications and platform provided by us via http://office.conserviscorp.com and/or other designated websites that are purchased by you under an Order Form, including “updates” (for example, bug fixes, service information, help content or maintenance releases) and associated offline components.
“User Guide” means the online user guide for the services, accessible via the Software Services, as updated from time to time.
“Users” means individuals who work for you and are authorized by you to use the Software Services and who have been supplied user identifications and passwords by you (or by us at your request).
“Your Data” means all data or information, electronic or otherwise, that is submitted by you in connection with the use of the Software Services and is identifiable to you.
2. SOFTWARE SERVICES
2.1. Provision of Software Services. We shall make the Software Services available to you pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that your purchase of Software Services is not contingent on the delivery of any future functionality or features.
2.2. Users. Unless otherwise specified in the applicable Order Form, a subscription by Licensee enables all of Licensee’s Users to access the components specified in the Conservis Subscription Agreement. Additional subscriptions may be offered by Conservis that allow access to additional components.
3. USE OF THE SOFTWARE SERVICES
3.1. Our Responsibilities. We shall: (i) provide to you basic support for the Software Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Software Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which we shall give at least 8 hours notice via the Software Services and which we shall schedule to the extent practicable during the evening hours), or (b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or Internet service provider failures or delays, and (iii) provide the Software Services only in accordance with applicable laws and government regulations.
Conservis shall have the right to change or add to the terms of this Agreement at any time (provided that it is not Conservis’ intent that such change substantially affect the license rights granted to Licensee herein and for which consideration was paid by Licensee) and to change, delete, discontinue, or impose conditions on any feature or aspect of the Software Services (including but not limited to Internet based services, pricing, technical support options, and other product-related policies) upon notice by any means Conservis determines in its discretion to be reasonable, including posting information concerning any such change, addition, deletion, discontinuance or conditions in the Software Services. If we do change or add to the terms of this Agreement, we will notify you in some reasonable manner, which could be by means of an e-mail sent to the e-mail address we have on file for the main contact of you. Any use of the Software Services by Licensee after publication of any such changes will constitute Licensee’s acceptance of this Agreement as modified.
3.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) maintain the confidentiality and security of Licensee’s access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information used by Licensee to access the Software Services, (iii) prevent unauthorized access to or use of the information, files or data that Licensee stores or uses in connection with the Software Services; (iv) be responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which you acquired Your Data, (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Software Services, and notify us promptly of any such unauthorized access or use, and (vi) use the Software Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Software Services available to anyone other than Users, (b) sell, resell, rent or lease the Software Services, (c) use the Software Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Software Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Software Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Software Services or their related systems or networks. You shall also be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Software Services. We will not be liable for any damage to your equipment resulting from use of the Software Services.
3.3. Usage Limitations. Software Services may be subject to other limitations. The Software Services provide real-time information to enable you to monitor your compliance with such limitations.
4. FEES AND PAYMENT FOR SOFTWARE SERVICES
4.1. User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased, and (iii) payment obligations are non-cancelable and fees paid are non-refundable.
4.2. Invoicing and Payment. Your invoicing and payment arrangement are set forth in the Order Forms.
4.3. Overdue Charges. If any invoiced amounts are not received from you by the due date, then at our discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4. Suspension of Software Services and Acceleration. If any amount owing by you under this or any other agreement for our services is 30 or more days overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements, if any, so that all such obligations become immediately due and payable, and suspend our Software Services to you until such amounts are paid in full.
4.5. Taxes. Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are responsible solely for taxes assessable against us based on our income, property and employees.
5. PROPRIETARY RIGHTS
5.1. Reservation of Rights. The Software Services are licensed, not sold. Conservis reserves all rights not expressly granted to Licensee in this Agreement. The Software Services are protected by copyright, trade secret and other intellectual property rights. Conservis owns all right, title and interest in and to the Software Services and all intellectual property rights therein, as well as the business processes, procedures, methods and techniques used with the Software Services and site (http://office.conserviscorp.com). No rights are granted to you hereunder other than as expressly set forth herein. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF THE SERVICES OR THE SITE WITHOUT THE EXPRESS WRITTEN PERMISSION OF CONSERVIS IS STRICTLY PROHIBITED. Any violation of this policy may result in a copyright, trademark or other intellectual property right infringement that may subject Licensee and User to civil and/or criminal penalties.
5.2. Restrictions. You are not licensed or permitted under this Agreement to do any of the following and shall not allow Users or any third party to do any of the following: (i) permit any third party to access the Software Services except as permitted herein or in an Order Form, (ii) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any content, features, functions or graphics pertaining to the Software Services without prior written consent; (iii) create any derivative works based on the Software Services, (iv) permit any third party to benefit from the use or functionality of the Software Services via a rental, lease, timesharing, service bureau, or other arrangement; (v) transfer any of the rights granted to Licensee under this Agreement; (vi) work around any technical limitations in the Software Services, use any tool to enable features or functionalities that are otherwise disabled in the Software Services, or decompile, disassemble, or otherwise reverse engineer the Software Services except as otherwise permitted by applicable law; (vii) perform or attempt to perform any actions that would interfere with the proper working of the Software Services or that would prevent access to or use of the Software Services by Conservis’ other licensees or customers.
5.3. Ownership of Your Data. As between us and you, you exclusively own all rights, title and interest in and to all of Your Data, but you are granting us the right to use Your Data as described in Section 5.4 and Section 6.4 below. We employ commercially reasonable measures for the protection of the security, confidentiality and integrity of Your Data.
5.4. License Grant. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (i) use or incorporate into the Software Services any suggestions, enhancement requests, recommendations or other feedback provided by you, including Users, relating to the operation of the Software Services, and (ii) access, use, reproduce and create derivative works based on any and all information you submit to us, or grant us the right to access, including Your Data, to assist you in your use of our Software Services and to create and modify Our Anonymized Databases (and we will own these anonymized databases).
6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Software Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2. Protection of Confidential Information. Except as permitted in Sections 5.4, 6.3 or 6.4 or as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is advised it is compelled by law to do so, provided the Receiving Party (which could include Your Data) gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and practical) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is advised it is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6.4 The provisions of this Section 6.3 apply even if a different provision of this Agreement states otherwise.
6.5. Sharing of Your Data with Authorized Trading Partners. We can make Your Data available to any third party that you authorize, including by making appropriate elections through the Software Services. For example, if you license Conservis’ Financial Integration function and choose to share Your Data with trading partners through making the proper elections through the software, then the portion of Your Data that you specify will be shared with the trading partners that you specify. In addition, if you receive the benefit of the services of ClearAg (a third party with whom Conservis has a contractual relationship) or receive data that originates with ClearAg, Your Data may be obtained by, shared with and/or used by ClearAg to enable you to receive the benefit of the Clear Ag services and Your Data may also be included, on a de-identified basis, in an aggregated database compiled by ClearAg. We will not provide Your Data to third parties unless you give us authority to so, which authority may be given by you making elections through the Software Services to disclose Your Data to specified third parties.
7. DISCLAIMER of WARRANTIES
7.1. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE SERVICES IS AT YOUR SOLE RISK. NEITHER CONSERVIS, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE SERVICES.
THE SOFTWARE SERVICES ARE MADE ACCESSIBLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. CONSERVIS HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF TITLE NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. MUTUAL INDEMNIFICATION
8.1. Indemnification by us. We shall defend you against any claim, demand, suit, or proceeding (“Claim”) made or brought against you by a third party alleging that the use of the Software Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify you for any damages finally awarded against, and for reasonable attorney’s fees incurred by, you in connection with any such Claim; provided, that you (a) promptly give us written notice of the Claim; (b) give us sole control of the defense and settlement of the Claim (provided that we may not settle any Claim unless the settlement unconditionally releases you of all liability); and (c) provide to us all reasonable assistance, at our expense.
8.2. Indemnification by you. You shall defend us against any Claim made or brought against us by a third party alleging that Your Data, or your use of the Software Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, us in connection with any such Claim; provided, that we (a) promptly give you written notice of the Claim; (b) give you sole control of the defense and settlement of the Claim (provided that you may not settle any Claim unless the settlement unconditionally release us of all liability); and (c) provide to you all reasonable assistance, at your expense.
8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. THE LIMITATIONS OF DAMAGES SET FORTH BELOW ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE GOOD DEAL BETWEEN CONSERVIS AND LICENSEE. CONSERVIS WOULD NOT BE ABLE TO HAVE PROVIDED THE SOFTWARE SERVICES AT THE PRICE IT CHARGES WITHOUT SUCH LIMITATIONS.
THE ENTIRE CUMULATIVE LIABILITY OF CONSERVIS AND ITS AFFILIATES, PARTNERSHIPS AND ALLIANCES FOR ALL MATTERS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID ON AN ANNUAL BASIS BY LICENSEE TO CONSERVIS FOR THE SOFTWARE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONSERVIS AND ITS AFFILIATES, PARTNERSHIPS AND ALLIANCES DISCLAIM AND SHALL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATIONS FAILURES, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, LICENSEE’S INABILITY TO ACCESS LICENSEE’S ACCOUNT DATA FOR WHATEVER REASON, LOSS OF PROFITS OR INVESTMENT, GOODWILL, OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF CONSERVIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.2. EXCLUSIONS AND LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 7 AND 9 MAY NOT APPLY TO YOU.
10. TERM, TERMINATION AND COPY OF YOUR DATA
10.1. Term of Agreement. This Agreement commences on the date you accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2. Term of Software Services Subscription. Subscriptions purchased by you commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein, provided that you remain in compliance with the terms of this Agreement and the Conservis Subscription Agreement. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods of one year, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any such renewal term shall be the same as that during the prior term unless we have given you written notice of a pricing change at least 30 days before the end of such prior term, in which case the pricing change shall be effective upon renewal and thereafter.
10.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4. Refund or Payment upon Termination. Upon any termination for cause by you, we shall refund you any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, you shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
10.5. Copy of Your Data. Upon your request, if you have fully paid all of your subscription fees and all other amounts you owe to Conservis, we will make available to you for download in Microsoft Excel, or in some other reasonable format we select, all Your Data that we have in its original or comparable data set. We will have up to 90 days to make this information available to you, and we will not be obligated to make this information available to you in response to a request we receive more than 30 days after the end of your subscription term.
10.6 Deletion of Your Data. If we receive a request from you within 30 days after the end of your subscription term to delete Your Data, we will permanently delete from Your Data any directly identifying information from our files within 90 days of receiving this request, although we will not be obligated to delete this information from any backups that we previously made.
10.7 Security. We will use commercially reasonable efforts to maintain the security and confidentiality of Your Data.
10.8 Surviving Provisions. Section 4 (Fees and Payment for Software Services), 5 (Proprietary Rights), 6 (Confidentiality), 7 (Disclaimer of Warranties), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.4 (Refund or Payment upon Termination), 10.5 (Copy of Your Data), 10.6 (Deletion of Your Data), 11 (Notices, Governing Law, Venue and Arbitration) and 12 (General Provisions) shall survive any termination or expiration of this Agreement.
11. NOTICES, GOVERNING LAW, VENUE AND ARBITRATION
11.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notice of an indemnifiable claim). Notices to you shall be addressed to the system administrator designated by you for your relevant Software Services account, and in the case of billing-related notices, to the relevant billing contact designated by you. Notices to us shall be directed to Accounting – Billing Department, Conservis Corp., 1624 Harmon Place, Minneapolis, MN., 55403. Phone: 612-424-6300. Facsimile: 612-424-6300. E-mail: firstname.lastname@example.org.
11.2. Governing Law and Jurisdiction. This Agreement will be governed by Minnesota law. All disputes shall be resolved through arbitration proceedings venued in Hennepin County, Minnesota.
11.3. Arbitration. You agree that: (i) any claim, dispute, or controversy you may have against us arising out of, relating to, or connected in any way with this Agreement and the Software Services, shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”); (ii) the arbitration shall be held in Hennepin County, Minnesota by AAA pursuant to the Rules and Procedures , (iii) the arbitrator shall apply Minnesota law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (iv) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and/or our individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; and (v) with the exception of subpart (iv) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (iv) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither party shall be entitled to arbitrate their dispute. In that event, both parties agree to resolve their dispute in Hennepin County, Minnesota and to waive their right to a trial by jury. For more information on AAA and its Rules and Procedures, you may visit the AAA website at http://www.adr.org.
12. GENERAL PROVISIONS
12.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.5. Attorney Fees. You shall pay on demand all of our reasonable attorney fees and other costs incurred by us to collect any fees or charges due us under this Agreement following your breach of Section 4.2 (Invoicing and Payment)
12.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, we shall refund to you any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.