CROSSING MINDS, INC. RECOMMENDATION API TERMS OF SERVICES
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLYBEFORE ACESSING OR USING CROSSING MINDS’S SUBSCRIPTION SERVICES.
THE TERMS AND CONDITIONS OF THIS SOFTWARE SUBSCRIPTIONAGREEMENT (“AGREEMENT”) GOVERN USE OF THE SUBSCRIPTION SERVICESBY YOU AS A “CUSTOMER” UNLESS YOU AND CROSSING MINDS, INC.(“CROSSING MINDS”) HAVE EXECUTED A SEPARATE AGREEMENT GOVERNINGUSE OF THE SUBSCRIPTION SERVICES.
The permissions and licenses to the Subscription Services granted by Crossing Minds inthis Agreement are conditioned upon Customer’s acceptance of and adherence to theterms and conditions recited in this Agreement. By either clicking on the “I accept”buon below or by using or accessing the Subscription Services, Customer indicatesunderstanding and acceptance of this Agreement and all the terms and conditionscontained herein. The individual acting on behalf or at the request of Customer toaccept these terms represents that they have the authority to bind the Customer to thisAgreement and agrees to the terms and conditions of this Agreement on behalf ofCustomer. This Agreement includes and incorporates the Order Form separately agreedto between Crossing Minds and Customer that references this Agreement and such OrderForm is incorporated herein by reference. Crossing Minds and Customer may be referredto herein collectively as the “Parties” or individually as a “Party.”
(a) “Aggregate Data” means any data that is derived or aggregated indeidentified form from (i) any Customer Materials; or (ii) Customer’s and/or itsAuthorized Users’ Use of the Subscription Services, including, without limitation,any usage data or trends with respect to the Subscription Services.
(b) “Authorized User” means an employee or contractor whom Customerhas authorized to Use the Subscription Services.
(c) “Crossing Minds IP” means the Subscription Services, the underlyingsoftware provided in conjunction with the Subscription Services, algorithms,interfaces, technology, databases, tools, know-how, processes and methods usedto provide or deliver the Subscription Services or any Professional Services,Documentation and Aggregate Data, all improvements, modifications orenhancements to, or derivative works of, the foregoing (regardless of inventorshipor authorship), and all Intellectual Property Rights in and to any of the foregoing.
(d) “Customer Materials” means all information, data, content and othermaterials, in any form or medium, that is submied, posted, collected,transmied or otherwise provided by or on behalf of Customer through theSubscription Services or to Crossing Minds in connection with Customer’s Use ofthe Subscription Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled byCrossing Minds and made available through or in connection with the SubscriptionServices.
(e) “Documentation” means the operator and user manuals, trainingmaterials, specifications, minimum system configuration requirements,compatible device and hardware list and other similar materials in hard copy orelectronic form if and as provided or made available by Crossing Minds toCustomer (including any revised versions thereof) relating to the SubscriptionServices, which may be updated from time to time upon notice to Customer.
(f) “Intellectual Property Rights” means patent rights (including,without limitation, patent applications and disclosures), inventions, copyrights,trade secrets, know-how, data and database rights, mask work rights, and anyother intellectual property rights recognized in any country or jurisdiction in theworld.
(g) “Order Form” means a (i) mutually executed order form or othermutually agreed upon ordering document; (ii) purchase order issued by Customerand accepted by Crossing Minds in writing; or (iii) quote issued by Crossing Mindsand accepted by Customer, in each case which references this Agreement and setsforth the applicable Subscription Services and/or Professional Services to beprovided by Crossing Minds.
(h) “Person” means any individual, corporation, partnership, trust,limited liability company, association, governmental authority or other entity.
(i) “Professional Services” means the implementation and/or otherprofessional services, if any, to be provided by Crossing Minds to Customer as setforth in the relevant Order Form.
(j) “Subscription Services” means the hosted services and correspondingapplication program interface (the “Recommendation API”)—including anyupdates, patches, bug fixes, or upgrades that Crossing Minds may make to theSubscription Services—as more particularly described or identified in theapplicable Order Form.
(k) “Use” means to use and access the Subscription Services inaccordance with this Agreement and the Documentation.
2. SUBSCRIPTION SERVICES; ACCESS AND USE.
(a) Subscription Services. Subject to the terms and conditions of thisAgreement, Crossing Minds hereby grants Customer a limited, non-exclusive,non-transferable (except in compliance with Section 13(f)) right to Use the Subscription Services during the Term, solely for Customer’s internal businesspurposes.
(b) Use Restrictions. The customer agrees to abide by the rate limits setforth in the relevant order form regarding the access, calls, and use of theRecommendation API and will not aempt to deliberately circumvent those ratelimits without the prior permission of Crossing Minds. Customer will not at anytime and will not permit any Person (including, without limitation, AuthorizedUsers) to, directly or indirectly: (i) Use the Subscription Services in any mannerbeyond the scope of rights expressly granted in this Agreement; (ii) modify orcreate derivative works of the Subscription Services or Documentation, in whole orin part; (iii) reverse engineer, disassemble, decompile, decode or otherwiseaempt to derive or gain improper access to any software component of theSubscription Services, in whole or in part; (iv) frame, mirror, sell, resell, rent orlease Use of the Subscription Services to any other Person, or otherwise allow anyPerson to Use the Subscription Services for any purpose other than for the benefitof Customer in accordance with this Agreement; (v) Use the Subscription Servicesor Documentation in any manner or for any purpose that infringes,misappropriates, or otherwise violates any Intellectual Property Right or otherright of any Person, or that violates any applicable law; (vi) interfere with, ordisrupt the integrity or performance of, the Subscription Services, or any data orcontent contained therein or transmied thereby; (vii) access or search theSubscription Services (or download any data or content contained therein ortransmied thereby) through the use of any engine, software, tool, agent, deviceor mechanism (including spiders, robots, crawlers or any other similar data miningtools) other than software or Subscription Services features provided by CrossingMinds for use expressly for such purposes; or (viii) Use the Subscription Services,Documentation or any other Crossing Minds Confidential Information forbenchmarking or competitive analysis with respect to competitive or relatedproducts or services, or to develop, commercialize, license or sell any product,service or technology that could, directly or indirectly, compete with theSubscription Services.
(c) Authorized Users. Customer will not allow any Person other thanAuthorized Users to Use the Subscription Services. Customer may permitAuthorized Users to Use the Subscription Services, provided that Customer ensureseach Authorized User complies with all applicable terms and conditions of thisAgreement and Customer is responsible for acts or omissions by Authorized Usersin connection with their Use of the Subscription Services. Customer will, and willrequire all Authorized Users to, use all reasonable means to secure user names andpasswords, hardware and software used to access the Subscription Services inaccordance with customary security protocols, and will promptly notify CrossingMinds if Customer knows or reasonably suspects that any user name and/orpassword has been compromised. Each account for the Subscription Services may only be accessed and used by the specific Authorized User for whom such accountis created.
(d) Reservation of Rights. Subject to the limited rights expressly grantedhereunder, Crossing Minds reserves and, as between the Parties will solely own, theCrossing Minds IP and all rights, title and interest in and to the Crossing Minds IP.No rights are granted to Customer hereunder (whether by implication, estoppel,exhaustion or otherwise) other than as expressly set forth herein.
3. FEES AND PAYMENT.
(a) Fees. Customer will pay Crossing Minds the non-refundable fees setforth in the relevant Order Form in accordance with the terms therein (“Fees”)and without offset or deduction. Except as otherwise provided in the relevantOrder Form, Crossing Minds will issue monthly invoices to Customer during theTerm, and Customer will pay all amounts set forth on any such invoice no laterthan thirty (30) days after the date of such invoice. If Customer has signed up forautomatic billing, Crossing Minds will charge Customer’s selected paymentmethod (such as a credit card, debit card, gift card/code, or other methodavailable in Customer’s home country) for any Fees on the applicable paymentdate, including any applicable taxes. If Crossing Minds cannot charge Customer’sselected payment method for any reason (such as expiration or insufficient funds),Customer remains responsible for any uncollected amounts, and Crossing Mindswill aempt to charge the payment method again as Customer may update itspayment method information. In accordance with local law, Crossing Minds mayupdate information regarding Customer’s selected payment method if providedsuch information by Customer’s financial institution.
(b) Payments. Payments due to Crossing Minds under this Agreementmust be made in U.S. dollars by check, wire transfer of immediately availablefunds to an account designated by Crossing Minds or such other payment methodmutually agreed by the Parties. All payments are non-refundable and neitherParty will have the right to set off, discount or otherwise reduce or refuse to payany amounts due to the other Party under this Agreement. If Customer fails tomake any payment when due, late charges will accrue at the rate of 1.5% permonth or, if lower, the highest rate permied by applicable law and CrossingMinds may suspend the Subscription Services until all payments are made in full.Customer will reimburse Crossing Minds for all reasonable costs and expensesincurred (including reasonable aorneys’ fees) in collecting any late payments orinterest.
(c) Taxes. Customer is responsible for all sales, use, ad valorem andexcise taxes, and any other similar taxes, duties and charges of any kind imposedby any federal, state, multinational or local governmental regulatory authority onany amount payable by Customer to Crossing Minds hereunder, other than any taxes imposed on Crossing Minds’s income. Without limiting the foregoing, in theevent that Customer is required to deduct or withhold any taxes from theamounts payable to Crossing Minds hereunder, Customer will pay an additionalamount, so that Crossing Minds receives the amounts due to it hereunder in full, asif there were no withholding or deduction.
4. CONFIDENTIAL INFORMATION.
(a) As used herein, “Confidential Information” means any informationthat one Party (the “Disclosing Party”) provides to the other Party (the“Receiving Party”) in connection with this Agreement, whether orally or inwriting, that is designated as confidential or that reasonably should be consideredto be confidential given the nature of the information and/or the circumstancesof disclosure. For clarity, the Subscription Services and the Documentation will bedeemed Confidential Information of Crossing Minds. However, ConfidentialInformation will not include any information or materials that: (i) were, at thedate of disclosure, or have subsequently become, generally known or available tothe public through no act or failure to act by the Receiving Party; (ii) wererightfully known by the Receiving Party prior to receiving such information ormaterials from the Disclosing Party; (iii) are rightfully acquired by the ReceivingParty from a third party who has the right to disclose such information ormaterials without breach of any confidentiality or non-use obligation to theDisclosing Party; or (iv) are independently developed by or for the ReceivingParty without use of or access to any Confidential Information of the DisclosingParty
(b) The Receiving Party will maintain the Disclosing Party’s ConfidentialInformation in strict confidence, and will not use the Confidential Information ofthe Disclosing Party except as necessary to perform its obligations or exercise itsrights under this Agreement; provided that Crossing Minds may use and modifyConfidential Information of Customer in deidentified form for purposes ofdeveloping and deriving Aggregate Data. The Receiving Party will not disclose orcause to be disclosed any Confidential Information of the Disclosing Party, except(i) to those employees, representatives, or contractors of the Receiving Party whohave a bona fide need to know such Confidential Information to perform underthis Agreement and who are bound by wrien agreements with use andnondisclosure restrictions at least as protective as those set forth in thisAgreement, or (ii) as such disclosure may be required by the order or requirementof a court, administrative agency or other governmental body, subject to theReceiving Party providing to the Disclosing Party reasonable wrien notice toallow the Disclosing Party to seek a protective order or otherwise contest thedisclosure.
(c) Each Party’s obligations of non-disclosure with regard to ConfidentialInformation are effective as of the Effective Date and will expire one (1) year from the date first disclosed to the Receiving Party; provided, however, withrespect to any Confidential Information that constitutes a trade secret (asdetermined under applicable law), such obligations of non-disclosure will survivethe termination or expiration of this Agreement for as long as such ConfidentialInformation remains subject to trade secret protection under applicable law.
(d) The terms and conditions of this Agreement will constituteConfidential Information of each Party but may be disclosed on a confidentialbasis to a Party’s advisors, aorneys, actual or bona fide potential acquirers,investors or other sources of funding (and their respective advisors and aorneys)for due diligence purposes.
Crossing Minds will provide Customer with reasonable technical support forthe Subscription Services in accordance with the standard support standards thatit makes available to its customers.
6. CUSTOMER MATERIALS AND DATA.
(a) Crossing Minds acknowledges that, as between Customer andCrossing Minds and except as set forth in Section 6(b), Customer owns and retainsall right, title and interest in and to all Customer Materials.
(b) Customer hereby grants Crossing Minds a non-exclusive, worldwide,royalty-free right and license to use, host, reproduce, display, perform, modify theCustomer Materials solely for the purpose of hosting, operating, and providing theSubscription Services and Professional Services to Customer.
(c) Customer represents and warrants that (i) it has obtained and willobtain and continue to have, during the Term, all necessary rights, authority andlicenses for the access to and use of the Customer Materials (including anypersonal data provided or otherwise collected pursuant to Customer’s privacypolicy) as contemplated by this Agreement and (ii) Crossing Minds’s use of theCustomer Materials in accordance with this Agreement will not violate anyapplicable laws or regulations or cause a breach of any agreement or obligationsbetween Customer and any third party.
7. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents andwarrants to the other Party that: (i) it is duly organized, validly existing and ingood standing under its jurisdiction of organization and has the right to enterinto this Agreement and (ii) the execution, delivery and performance of thisAgreement and the consummation of the transactions contemplated hereby arewithin the corporate powers of such Party and have been duly authorized by allnecessary corporate action on the part of such Party, and constitute a valid andbinding agreement of such Party.
(a) Crossing Minds Indemnification. Subject to Section 8(b), CrossingMinds will defend Customer against any claim, suit or proceeding brought by athird party (“Claims”) alleging that Customer’s Use of the Subscription Servicesinfringes or misappropriates such third party’s Intellectual Property Rights, andwill indemnify and hold harmless Customer against any damages and costsawarded against Customer or agreed in selement by Crossing Minds (includingreasonable aorneys’ fees) resulting from such Claim.
(b) Exclusions. Crossing Minds’s obligations under Section 8(a) will notapply if the underlying third-party Claim arises from or as a result of: (i)Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii)any Customer Materials; (iii) Customer’s failure to use any enhancements,modifications, or updates to the Subscription Services that have been provided byCrossing Minds; (iv) modifications to the Subscription Services by anyone otherthan Crossing Minds; or (v) combinations of the Subscription Services withsoftware, data or materials not provided by Crossing Minds.
(c) IP Remedies. If Crossing Minds reasonably believes the SubscriptionServices (or any component thereof) could infringe any third party’s IntellectualProperty Rights, Crossing Minds may, at its sole option and expense usecommercially reasonable efforts to: (i) modify or replace the SubscriptionServices, or any component or part thereof, to make it non-infringing; or (ii)procure the right for Customer to continue Use. If Crossing Minds determinesthat neither alternative is commercially practicable, Crossing Minds mayterminate this Agreement, in its entirety or with respect to the affectedcomponent, by providing wrien notice to Customer. In the event of any suchtermination, Crossing Minds will refund to Customer a pro-rata portion of theFees that have been paid for the unexpired portion of the then current term ofthe Agreement for which the Fees have been prepaid. The rights and remediesset forth in this Section 8 will constitute Customer’s sole and exclusive remedy forany infringement or misappropriation of Intellectual Property Rights inconnection with the Subscription Services.
(d) Customer Indemnification. Subject to Section 8(e), Customer willdefend Crossing Minds against Claims arising from (i) any Customer Materials,including, without limitation, (A) any Claim that the Customer Materials infringe,misappropriate or otherwise violate any third party’s Intellectual Property Rightsor privacy or other rights; or (B) any Claim that the use, provision, transmission,display or storage of Customer Materials violates any applicable law, rule orregulation; (ii) any of Customer’s products or services; and (iii) Use of theSubscription Services by Customer or its Authorized Users in a manner that is notin accordance with this Agreement or the Documentation, including, withoutlimitation, any breach of the license restrictions in Section 2(b), and in each case, will indemnify and hold harmless Crossing Minds against any damages and costsawarded against Crossing Minds or agreed in selement by Customer (includingreasonable aorneys’ fees) resulting from such Claim.
(e) Indemnification Procedures. The Party seeking defense andindemnity (the “Indemnified Party”) will promptly (and in any event no later thanthirty (30) days after becoming aware of facts or circumstances that couldreasonably give rise to any Claim) notify the other Party (the “IndemnifyingParty”) of the Claim for which indemnity is being sought, and will reasonablycooperate with the Indemnifying Party in the defense and/or selement thereof.The Indemnifying Party will have the sole right to conduct the defense of anyClaim for which the Indemnifying Party is responsible hereunder (provided thatthe Indemnifying Party may not sele any Claim without the Indemnified Party’sprior wrien approval unless the selement is for a monetary amount,unconditionally releases the Indemnified Party from all liability without prejudice,does not require any admission by the Indemnified Party, and does not placerestrictions upon the Indemnified Party’s business, products or services). TheIndemnified Party may participate in the defense or selement of any such Claimat its own expense and with its own choice of counsel or, if the IndemnifyingParty refuses to fulfill its obligation of defense, the Indemnified Party may defenditself and seek reimbursement from the Indemnifying Party.
9. PROFESSIONAL SERVICES WARRANTY; DISCLAIMER. Crossing Mindswarrants that Professional Services will be performed in a good and workmanlikemanner consistent with applicable industry standards. This warranty will be ineffect for a period of thirty (30) days from the completion of any ProfessionalServices. As Customer’s sole and exclusive remedy and Crossing Minds’s entireliability for any breach of the foregoing warranty, Crossing Minds will promptlyre-perform any Professional Services that fail to meet this limited warranty.EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUBSCRIPTION SERVICES,PROFESSIONAL SERVICES AND OTHER CROSSING MINDS IP ARE PROVIDED ONAN “AS IS” BASIS, AND CROSSING MINDS MAKES NO WARRANTIES ORREPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHERPARTY REGARDING THE CROSSING MINDS IP, THE SUBSCRIPTION SERVICES,PROFESSIONAL SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDEDHEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,CROSSING MINDS HEREBY DISCLAIMS ALL WARRANTIES ANDREPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOTLIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESSFOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIESARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUTLIMITING THE FOREGOING, CROSSING MINDS HEREBY DISCLAIMS ANYWARRANTY THAT USE OF THE SUBSCRIPTION SERVICES OR PROFESSIONALSERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED, AND MAKES NO WARRANTIES AS TO THE ACCURACY OF THE RECOMMENDATIONSPROVIDED BY THE RECOMMENDATION API.
10. LIMITATIONS OF LIABILITY.
(a) Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BYONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II)CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR(III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILLBE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY,PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA,PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER ORSUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR INCONNECTION WITH THIS AGREEMENT, THE CROSSING MINDS IP OR THEPROVISION OF THE SUBSCRIPTION SERVICES AND PROFESSIONAL SERVICES,WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT,WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OROTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THEPOSSIBILITY OF SUCH LOSS OR DAMAGE.
(b) Total Liability. IN NO EVENT WILL CROSSING MINDS’ TOTALLIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITHTHIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TOCROSSING MINDS IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENTGIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLETHEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER ORNOT CROSSING MINDS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS ORDAMAGE.
(c) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE ANDAGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE ANESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN CROSSING MINDSAND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLEHEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
11. TERM AND TERMINATION.
(a) Term. The initial term of this Agreement begins on the earlier of thedate upon which Customer accepts this Agreement or the date that is set forth inthe Order Form and expires at the end of the Initial Term specified in therelevant Order Form (the “Initial Term”). Following the Initial Term, thisAgreement will automatically renew for additional periods of one (1) year (each, a“Renewal Term,” and together with the Initial Term, the “Term”), unless eitherParty provides the other with at least thirty (30) days’ wrien notice of its intentnot to renew this Agreement prior to the end of the then-current Term.
(b) Termination. Either Party may terminate this Agreement, effectiveon wrien notice to the other Party, if the other Party materially breaches thisAgreement, and such breach remains uncured thirty (30) days after thenon-breaching Party provides the breaching Party with wrien notice of suchbreach.
(c) Survival. This Section 11(c) and Sections 1, 2(b), 2(c), 3, 4, 6, 7, 8, 9,10, 11(d) and 13 survive any termination or expiration of this Agreement.
(d) Effect of Termination. Upon expiration or termination of thisAgreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii)Customer will return or destroy, at Crossing Minds’s sole option, all Crossing MindsConfidential Information in its possession or control, including permanentremoval of such Crossing Minds Confidential Information (consistent withcustomary industry practice for data destruction) from any storage devices orother hosting environments that are in Customer’s possession or under Customer’scontrol, and at Crossing Minds’s request, certify in writing to Crossing Minds thatthe Crossing Minds Confidential Information has been returned, destroyed or, inthe case of electronic communications, deleted. No expiration or termination willaffect Customer’s obligation to pay all Fees that may have become due orotherwise accrued through the effective date of expiration or termination, orentitle Customer to any refund.
Customer hereby grants Crossing Minds a limited,non-exclusive, royalty-free license to use and display Customer’s name,designated trademarks and associated logos (the “Customer Marks”) during theTerm in connection with (i) the hosting, operation and maintenance of theSubscription Services; and (ii) Crossing Minds’s marketing and promotional effortsfor its products and services, including by publicly naming Customer as a customerof Crossing Minds and case studies. All goodwill and improved reputationgenerated by Crossing Minds’s use of the Customer Marks inures to the exclusivebenefit of Customer. Crossing Minds will use the Customer Marks in the formstipulated by Customer and will conform to and observe such standards asCustomer prescribes from time to time in connection with the license grantedhereunder.
(a) Entire Agreement. This Agreement, including applicable OrderForms,, is the complete and exclusive agreement between the Parties with respectto its subject maer and supersedes any and all prior or contemporaneousagreements, communications and understandings, both wrien and oral, withrespect to its subject maer.
(b) Notices. Crossing Minds may provide any notice to Customer underthis Agreement by: (i) posting a notice on Crossing Minds’s website; or (ii) sendinga message to the administrative email address(es) then associated withCustomer’s Account. Notices that Crossing Minds provides by posting on CrossingMinds’s website will be effective upon posting, and notices Crossing Minds providesby email will be effective on the date the email was sent.
(c) Waiver. Either Party’s failure to enforce any provision of thisAgreement will not constitute a waiver of future enforcement of that or any otherprovision. No waiver of any provision of this Agreement will be effective unless itis in writing and signed by the Party granting the waiver.
(d) Severability. If any provision of this Agreement is held invalid, illegalor unenforceable, that provision will be enforced to the maximum extentpermied by law, given the fundamental intentions of the Parties, and theremaining provisions of this Agreement will remain in full force and effect.
(e) Governing Law; Jurisdiction. This Agreement will be governed by andconstrued in accordance with the laws of the State of California without givingeffect to any principles of conflict of laws that would lead to the application ofthe laws of another jurisdiction. The Parties expressly agree that the UnitedNations Convention on Contracts for the International Sale of Goods will notapply. Any legal action or proceeding arising under this Agreement will bebrought exclusively in the federal or state courts located in San Francisco County,California and the Parties irrevocably consent to the personal jurisdiction andvenue therein.
(f) Assignment. NeitherPartymayassignortransferthisAgreement,byoperation of law or otherwise, without the other Party’s prior wrien consent.Any aempt to assign or transfer this Agreement without such consent will bevoid. Notwithstanding the foregoing, either Party may assign or transfer thisAgreement to a third party that succeeds to all or substantially all of theassigning Party’s business and assets relating to the subject maer of thisAgreement, whether by sale, merger, operation of law or otherwise. Subject tothe foregoing, this Agreement is binding upon and will inure to the benefit of eachof the Parties and their respective successors and permied assigns.
(g) Equitable Relief. Each Party agrees that a breach or threatenedbreach by such Party of any of its obligations under Section 4 or, in the case ofCustomer, Section 2(b), would cause the other Party irreparable harm andsignificant damages for which there may be no adequate remedy under law andthat, in the event of such breach or threatened breach, the other Party will havethe right to seek immediate equitable relief, including a restraining order, aninjunction, specific performance and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all otherremedies that may be available at law, in equity or otherwise.
(h) Force Majeure. Neither Party will be responsible for any failure ordelay in the performance of its obligations under this Agreement (except for anypayment obligations) due to causes beyond its reasonable control, which mayinclude, without limitation, labor disputes, strikes, lockouts, shortages of orinability to obtain energy, raw materials or supplies, denial of service or othermalicious aacks, telecommunications failure or degradation, pandemics,epidemics, public health emergencies, governmental orders and acts (includinggovernment-imposed travel restrictions and quarantines), material changes inlaw, war, terrorism, riot, or acts of God.
(i) Subcontracting. Crossing Minds may use subcontractors, and otherthird-party providers (“Subcontractors”) in connection with the performance of itsown obligations hereunder as it deems appropriate; provided that Crossing Mindsremains responsible for the performance of each such Subcontractor.Notwithstanding anything to the contrary in this Agreement, with respect to anythird-party vendors including any hosting (e.g. AWS) or payment vendors (e.g.PayPal), Crossing Minds will use commercially reasonable efforts to guard againstany damages or issues arising in connection with such vendors, but will not beliable for the acts or omissions of such third-party vendors except to the extentthat it has been finally adjudicated that such damages or issues are causeddirectly from the gross negligence or willful misconduct of Crossing Minds.
(j) Export Regulation. Customer will comply with all applicable federallaws, regulations and rules that prohibit or restrict the export or re-export of theSubscription Services or software, or any Customer Materials, outside the UnitedStates (“Export Rules”), and will complete all undertakings required by ExportRules, including obtaining any necessary export license or other governmentalapproval.
(k) U.S. Government End Users. The Subscription Services, software andDocumentation are “commercial computer software” and “commercial computersoftware documentation,” respectively, as such terms are used in FAR 12.212 andother relevant government procurement regulations. Any use, duplication, ordisclosure of the software or its documentation by or on behalf of the U.S.government is subject to restrictions as set forth in this Agreement.
(l) Relationship of the Parties. The relationship between the Parties isthat of independent contractors. Nothing in this Agreement will be construed toestablish any partnership, joint venture or agency relationship between theParties. Neither Party will have the power or authority to bind the other or incurany obligations on the other’s behalf without the other Party’s prior wrienconsent.
(m) No Third-Party Beneficiaries. No provision of this Agreement isintended to confer any rights, benefits, remedies, obligations, or liabilitieshereunder upon any Person other than the Parties and their respective successorsand assigns.
14. CONTACT INFORMATION.
If you have any questions regarding thisAgreement, you may contact Crossing Minds at firstname.lastname@example.org.