Subscription Agreement

BY EXECUTING AN ORDER FORM THAT REFERENCES THIS SUBSCRIPTION AGREEMENT (THE “ORDER FORM” AND TOGETHER WITH THIS SUBSCRIPTION AGREEMENT THIS “AGREEMENT”) YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THIS AGREEMENT YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUPPER PLATFORM (AS DEFINED BELOW).

This Agreement by and between Usual Things Inc. (d/b/a Supper) (“Supper”) and Customer is effective as of the effective date set forth in the Order Form (the “Effective Date”) and governs Customer’s use of Supper’s proprietary software-as-a-service platform which assists businesses with organizing analyzing and querying their data including data regarding sales and financial performance as further described in the Order Form (the “Supper Platform”).

Each of Supper and Customer may be referred to herein individually as a “Party” or collectively as “Parties”. Capitalized terms used in this Subscription Agreement that are not defined herein have the meanings given in the Order Form.

1. ACCESS TO THE SUPPER PLATFORM
   
   1. Access Grant. Supper will use commercially reasonable efforts to make the Supper Platform available to Customer. Subject to the terms and conditions of this Agreement, Supper hereby grants Customer the limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Supper Platform during the Term (as defined below) solely for Customer’s internal business purposes. The foregoing license shall not reduce or diminish any rights Customer may have in Customer Data (as defined below), including Customer’s right to share Customer Data with third parties.
   2. Restrictions and Responsibilities. Customer will not provide access to the Supper Platform except to its employees, contractors, and consultants (“Authorized Users”). Customer will be liable for the acts or omissions of Authorized Users in violation of this Agreement as if they were “Customer” hereunder. Customer will not and will not permit any Authorized User to use the Supper Platform for any purpose other than the purposes expressly set forth herein. Customer may not nor permit any Authorized User to directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Supper Platform; (b) modify, translate, or create derivative works based on the Supper Platform; (c) use the Supper Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party (other than an Authorized User); (d) remove any proprietary notices or labels; or (e) use the Supper Platform to develop or improve a product or service that is competitive to the Supper Platform. Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Supper Platform, including modems, hardware, server, software, operating system, networking, web servers, and the like. Customer will also be responsible for maintaining the confidentiality of Customer’s and its Authorized Users’ usernames, passwords, and account details and for any actions by parties with access to such usernames and passwords (such access having been provided to such parties by or on behalf of Customer). Customer will not and will ensure that its Authorized Users do not disclose such usernames and passwords to any third parties. Customer will inform Supper promptly if it discovers that any such username and/or password has been disclosed or made available to a third party or that any unauthorized third party is otherwise accessing or using the Supper Platform. Without limiting any other rights or remedies set forth herein or available pursuant to law, Supper may immediately suspend Customer’s or any Authorized User’s access to the Supper Platform if Customer is in breach of any term or condition of this Agreement.
   3. License to Customer Data. Customer hereby grants to Supper a non-exclusive, royalty-free, fully paid up, non-sublicensable (except to contractors and consultants of Supper), non-transferable (subject to Section 10.6) right and license to copy, distribute, display, create derivative works of, and otherwise use the data and information uploaded, input, or otherwise made available by or on behalf of Customer to or through the Supper Platform, including through the Third Party Services (as defined below) (“Customer Data”) to (i) provide the Supper Platform and otherwise perform Supper’s obligations under this Agreement, (ii) improve the Supper Platform and Customer's experience with it, including by training and refining models and algorithms to better serve Customer experience, and (iii) create aggregated and/or anonymized data (“Aggregated Data”). For the avoidance of doubt, Aggregated Data is not Customer Data. Each Party will comply with its obligations under any Data Processing Addendum attached hereto.
   4. Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality, or other feedback (“Feedback”) to Supper with respect to the Supper Platform or Evaluation Services (as defined below). Supper will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features, or functionality. Customer hereby grants to Supper a royalty-free, fully paid up, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide, and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback. Customer acknowledges and agrees that Feedback is not Confidential Information (as defined below).
   5. Evaluation Services. From time to time, Customer may be invited to try certain services at no charge for a free pilot period, or if such services are not generally available to customers (collectively “Evaluation Services”). Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release, or the like. Evaluation Services are for Customer’s internal evaluation purposes only and, notwithstanding anything to the contrary set forth herein, are provided “as is” without warranty of any kind, and may be subject to additional terms. Supper may discontinue Evaluation Services at any time in its sole discretion, and may never make them generally available. Supper will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.
   6. Third Party Services. The Supper Platform may enable access to or integration with certain third-party services, products, solutions, software, application programming interfaces, and/or other technology which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party (collectively, the “Third Party Services”). The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services. Some Third Party Services may provide Supper with access to certain information that Customer has provided to such Third Party Services. Any data, information, or other materials related to Customer collected via or received by Supper from any Third Party Service will be deemed Customer Data. Supper has no control over and is not responsible for such Third Party Services, including the accuracy, availability, reliability, or completeness of information shared by or available through the Third Party Services, or on the privacy practices of the Third Party Services. Supper will not be responsible or liable directly or indirectly for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services to the extent such are caused by the applicable Third Party Service. Any dealings Customer has with third parties while using the Supper Platform are between Customer and the third party. Supper is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party.

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7. Service Levels; Support. Supper will use reasonable efforts, consistent with prevailing industry standards, to provide the Supper Platform in a manner that minimizes errors and interruptions in accessing the Supper Platform. The Supper Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Supper or by third-party providers, or because of other causes beyond Supper’s reasonable control, but Supper will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Supper’s control.

2. Ownership; Reservation of Rights. As between the Parties, Supper retains all right, title, and interest in and to the Supper Platform and all associated intellectual property rights. Supper grants no and reserves any and all rights with respect to the Supper Platform other than the rights expressly granted to Customer under this Agreement. As between the Parties, Customer retains all right, title, and interest in and to the Customer Data. Customer grants no and reserves any and all rights with respect to the Customer Data other than the rights expressly granted to Customer under this Agreement.
3. FEES; PAYMENT TERMS
   
   1. Fees. Customer will pay to Supper the fees set forth in the Order Form in accordance with the payment terms set forth therein and herein.  
   2. Payment Terms. Payment obligations are non-cancelable, and all fees paid are non-refundable. Past due amounts shall bear a late payment charge until paid at the rate of one and one-half percent (1.5%) per month, or the maximum amount permitted by law, whichever is less. If the Order Form requires that Supper invoice Customer for any fees, Customer will pay all such undisputed invoiced amounts within thirty (30) days of receipt of the applicable invoice.
   3. Net of Taxes. All amounts payable by Customer to Supper hereunder are exclusive of any sales, use, and other taxes or duties, however designated, including withholding taxes, excise, sales, use, value-added, and property taxes (collectively, “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Supper. Customer will not withhold any Taxes from any amounts due Supper.
4. TERM; TERMINATION
   
   1. Term; Termination. This Agreement will commence on the Effective Date and continue for the period set forth in the Order Form unless otherwise earlier terminated in accordance with this Agreement. This period may be extended or amended pursuant to additional Order Forms that explicitly reference and are governed by this Agreement and are executed by both Parties. Each Order Form may include additional extension or renewal mechanics. After the initial period specified in the most recently executed Order Form, this Agreement and such Order Form will automatically renew for annual periods (each a “Renewal Term” and together with the Pilot Period (if any), the “Term”) unless (a) either Party provides written notice of termination during the Pilot Period (as set forth below), or (b) either Party provides written notice of non-renewal during any Renewal Term to the other Party at least fifteen (15) days’ prior to the end of the then-current term. At any time during the Term, either Party may terminate this Agreement immediately by providing a written notice to the other Party if that other Party has breached any of its material obligations and has not fully cured the breach within thirty (30) days after it has been given an initial written notice specifying the breach.
   2. Effect of Termination. In the event that this Agreement expires or is terminated for any reason (a) all rights granted to Customer with respect to the Supper Platform and all rights granted to Supper with respect to the Customer Data will immediately terminate, and (b) Customer will (i) cease use of the Supper Platform, and (ii) pay to Supper all undisputed amounts due and owing under this Agreement. In addition, upon expiration or termination of this Agreement, each Recipient (as defined below) will return to the Discloser (as defined below) or destroy, at the Discloser’s election, all of the Discloser’s Confidential Information and all copies or other tangible embodiments thereof.
   3. Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.2 (Restrictions and Responsibilities), 1.4 (Feedback), 2 (Ownership; Reservation of Rights), 3 (Fees; Payment Terms), 4 (Term; Termination), 5 (Confidentiality), 6.4 (Disclaimers), 6.5 (Use of Artificial Intelligence), 7 (Limitations of Liability), 8 (Indemnification), and 10 (General) will survive.
5. CONFIDENTIALITY
   
   1. Definition of Confidential information. “Confidential Information” means, subject to the exceptions set forth in Section 5.2 hereof, any technical and non-technical information disclosed by such Party (“Discloser”) or its representatives or affiliates to the other Party (“Recipient”), regardless of whether it is in tangible form, including without limitation: (a) patent and patent applications; (b) trade secrets; (c) proprietary and confidential information, ideas, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of the Discloser, such as information concerning research, experimental work, development, prototypes, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business and contractual relationships, business forecast, sales and merchandising, and marketing plans; (d) any data related to customers, investors, employees or others; and (e) all other information, data, or materials that the Recipient knew, or reasonably should have known, was the Confidential Information of the Discloser. Customer Data is the Confidential Information of Customer and Confidential Information shall remain the property of the Discloser. 
   2. Exceptions to Confidential Information. Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession free of any obligation of confidence prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
   3. Use and Disclosure of Confidential Information. The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish, or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees, contractors, and consultants who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations or the exercise of the Recipient’s rights hereunder, and (b) professional advisers (e.g., lawyers and accountants) in each case during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees, consultants, and contractors are bound by written agreements or, in the case of professional advisers, ethical duties respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.
   4. Disclosures Required by Law. In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser by subpoena, judicial or administrative order, or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and upon request, provide reasonable assistance to the Discloser in seeking to obtain such protection, including assisting with obtaining a protective order to prevent or limit the disclosure.
   5. Unauthorized Disclosure. The Recipient will immediately notify the Discloser upon discovery of any loss or unauthorized disclosure of Confidential Information of the Discloser.
6. REPRESENTATIONS and WARRANTIES; DISCLAIMER
   
   1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, (c) this Agreement constitutes a legal, valid, and binding obligation when signed by both Parties and (d) each Party shall comply with all applicable laws and regulations in performance of this Agreement.
   2. Supper Representations and Warranties. Supper represents and warrants that (a) to its knowledge, the Supper Platform and any related services provided under this Agreement do not infringe the intellectual property rights or proprietary rights of any third party, (b) the Supper Platform shall materially conform to any documentation provided by Supper, (c) it will use commercially reasonable efforts to ensure that the Supper Platform does not contain any viruses, worms, Trojan horses, or other similar or harmful code and (d) it has all rights, licenses, and permissions to provide the Supper Platform and any related services provided under this Agreement.  
   3. Customer Representations and Warranties. Customer represents and warrants that it has the legal authority and all rights necessary to provide the Customer Data to Supper hereunder, and Supper’s use of the Customer Data as permitted hereunder does not and will not violate or conflict with or result in a breach of any terms, conditions, duties, or obligations Customer has to any third party, or any other rights of any third party, or any applicable law, rule, or regulation.
   4. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUPPER PLATFORM AND CUSTOMER DATA IS PROVIDED ON AN “AS-IS” BASIS, AND THE PARTIES DISCLAIM ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. THE PARTIES EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. SUPPER DOES NOT WARRANT THAT THE SUPPER PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE SUPPER PLATFORM WILL BE SECURE OR UNINTERRUPTED.
   5. Use of Artificial Intelligence. Customer acknowledges and agrees that the Supper Platform includes and integrates with proprietary and/or third-party advanced technologies such as artificial intelligence, machine learning systems, and similar technology and features (collectively “AI Technology”). Customer acknowledges and agrees that, in addition to the other limitations and restrictions set forth in this Agreement: Customer will use discretion and independent judgment before relying on, sharing, or otherwise using the responses or other content generated by the AI Technology and provided to Customer through the Supper Platform (“Output”); AI Technology can perpetuate biases that are present in the data used to train them, which can result in Output that is discriminatory or offensive; AI Technology can struggle with complex tasks that require reasoning, judgment, and decision-making; and AI Technology may misunderstand or misinterpret Customer’s queries or other instructions. Notwithstanding anything to the contrary in this Agreement, Supper bears no liability to Customer or anyone else arising from or relating to Customer’s use of the Output or the accuracy thereof.
7. LIMITATIONS OF LIABILITY
   
   1. Disclaimer of Consequential Damages. EXCEPT FOR LIABILITY ARISING FROM (A) EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS, OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
   2. General Cap on Liability. EXCEPT FOR LIABILITY ARISING FROM (A) EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 BELOW, OR (D) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 3 (FEES; PAYMENT TERMS), UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO SUPPER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
   3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

8. INDEMNIFICATION
   
   1. Indemnification by Supper. Supper will indemnify, defend, and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs, and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand, or action by a third party that Customer’s use of the Supper Platform infringes or misappropriates any third party intellectual property rights (except for claims for which Supper is entitled to indemnification under Section 8.2, in which case Supper will have no indemnification obligations with respect to such claim). Supper will have no liability or obligation under this Section 8.1 with respect to any Liability to the extent such Liability is caused by: (a) modification of the Supper Platform by or on behalf of Customer; (b) the combination, operation, or use of the Supper Platform with Customer Data, Customer’s services, Customer’s products, or third party products or services, where the Supper Platform would not, by itself, be infringing; or (c) use of the Supper Platform in violation of this Agreement. This Section 8.1 states Supper’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
   2. Indemnification by Customer. Customer will indemnify, defend, and hold Supper and the officers, directors, agents, and employees of Supper (“Supper Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Supper Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand, or action by a third party that arises out of or is in connection with (a) any use by Customer of the Supper Platform in violation of this Agreement, (b) Supper’s use of the Customer Data submitted to Supper under this Agreement, or (c) Customer’s violation of any terms and conditions related to and/or governing any Third Party Services.
   3. Action in Response to Potential Infringement. If the use of the Supper Platform or any portion thereof by Customer has become, or in Supper’s opinion, is likely to become the subject of any claim of infringement, Supper may, at its option and expense: (a) procure for Customer the right to continue using the Supper Platform as set forth hereunder; (b) replace or modify the Supper Platform to make it non-infringing, so long as the Supper Platform has at least equivalent functionality; (c) substitute an equivalent for the Supper Platform; or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.‍
   4. Indemnification Procedure. If a Customer Indemnified Party or a Supper Indemnified Party (each an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration, or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense, and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.

9. GOVERNMENT MATTERS Customer may not remove or export from the United States or allow the export or re-export of the Supper Platform, or any direct product thereof, in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Supper Platform (including the software, documentation, and data related thereto) are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5), are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
10. GENERAL
    
    1. Force Majeure. No Party hereto will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond such Party’s reasonable control, including: (a) any fire, explosion, unusually severe weather, natural disaster, or act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power, or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e) any strike, lockout, or other labor dispute or action; or (f) any action taken in response to any of the foregoing events by any civil or military authority.
    2. Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect to the extent consistent with the intent of the Parties as of the Effective Date. The terms and conditions of this Agreement are severable. If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms will remain in force. Further, the term or condition which is held to be illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the Parties as of the Effective Date.
    3. Relationship of the Parties. Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third Parties. Neither Party will represent to the contrary, either expressly, implicitly, or otherwise.
    4. Remedies. Each Party acknowledges that a breach by it of any of the terms of Section 5 may cause irreparable harm to the Discloser, for which Discloser could not be adequately compensated by money damages. Accordingly, Recipient agrees that in addition to all other remedies available to Discloser in an action at law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, the Discloser may seek from any court of competent jurisdiction, and without the necessity of proving actual damages or posting any bond or other security, temporary and permanent injunctive relief, including specific performance of the terms of Section 5.
    5. Governing Law; Consent to Jurisdiction. The law, including the statutes of limitation, of the State of New York will govern this Agreement, the interpretation and enforcement of its terms, and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it, or its negotiation, execution, or performance, whether based on contract, tort, statutory, or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of New York and of the United States of America for any litigation among the Parties hereto arising out of or relating to this Agreement or the negotiation, validity, or performance of this Agreement, waives any objection to the laying of venue of any such litigation in such courts, and agrees not to plead or claim in any such court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of such courts.
    6. Assignment; Binding Effect. Neither Party may assign or transfer this Agreement in whole or in part without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement without the written consent of the other Party to an affiliate or corporation or other business entity succeeding to all or substantially all the assets and business of the assigning Party to which this Agreement relates, whether by merger, purchase, or otherwise. Any attempted assignment, delegation, or transfer by a Party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and permitted assigns.
    7. Notices. All notices under this Agreement will be in writing, reference this Agreement, and be sent to the addresses set forth on the Order Form. Notices will be deemed given: (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) by email, for which receipt is confirmed; or (d) one (1) day after deposit with an internationally recognized commercial overnight carrier, with written verification of receipt. Each Party may update its notice address by providing written notice to the other Party in accordance with this Section 10.7.
    8. No Waiver. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
    9. Complete Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments, or quotations. To the extent of any conflict or inconsistency between the provisions in the body of this Subscription Agreement and the Order Form, the terms of this Subscription Agreement will prevail unless the Order Form expressly amends a provision in this Subscription Agreement. This Agreement may only be amended pursuant to a written agreement signed by both Parties.