a. Force Majeure
Neither party shall be liable to the other as a result of any delay or failure to perform their respective obligations under this Agreement as a result of a Force Majeure Event. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 90 days, the Customer shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Supplier.
b. Relationship of the Parties
It is the express intention of the parties that Supplier is an independent contractor and not an employee, agent, joint venturer or partner of Customer. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and Supplier or any employee or agent of Supplier. Both parties acknowledge that Supplier is not an employee for state or federal tax purposes. Supplier shall retain the right to perform services for others during the term of this Agreement. As Supplier is not Customer’s employee, Supplier is responsible for paying all required state and federal taxes, including but not limited to FICA, FUTA, SUI, DUI, worker’s compensation, and other employee benefits to Supplier’s employees. Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
c. Inadequacy of Damages
Without prejudice to any other rights or remedies that a party may have, the Parties acknowledge and agree that damages alone may not be an adequate remedy for any breach of the terms of this Agreement by a party. Accordingly, the parties shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
d. Relationship of the Parties
It is the express intention of the parties that Supplier is an independent contractor and not an employee, agent, joint venturer or partner of Customer. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and Supplier or any employee or agent of Supplier. Supplier shall retain the right to perform services for others during the term of this Agreement.
Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
Either party may subcontract its obligations under this Agreement.
Customer shall not, without Supplier’s prior written consent, either during the Term or within 12 months after the date of effective termination of this Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of Supplier who has been involved in the performance of this Agreement. If Customer violates this clause, Supplier is entitled to seek injunctive relief and damages.
g. Modification and Amendments
Other than as set out in this Paragraph, no variation of this Agreement shall be effective unless made in writing and signed by or on behalf of each of the parties or by their duly authorized representatives.
Supplier, it its sole discretion, may modify this Agreement to, for example, reflect changes to the law, Platform, or Services provided to Customer by Supplier or related third-party. Customer should look at this Agreement regularly. Supplier will post notice of modifications of this Agreement, to this website, and/or in a similar form of electronic communication at its option unless the modifications entail a Material Change to the terms of the Agreement. If Customer does not agree to the modified Agreement, Customer shall contact Supplier within 30 days of the change. Continued use of the Platform constitutes Customer’s acceptance of the modified Agreement. No Material Change of this Agreement shall be effective unless made in writing and signed by or on behalf of each of the parties or by their duly authorized.
If Customer does not agree to the modified Agreement, Customer shall contact Supplier within 30 days of the change. Continued use of the Platform constitutes Customer’s acceptance of the modified Agreement.
h. Litigation Support
Except where permitted by this Agreement, Supplier shall not disclose Confidential Information, Customer Content, or Customer Data to third parties, but the restrictions on disclosure imposed by this section shall not apply to information that is required by law, subpoena, or order of a court, administrative agency, or other governmental body to be disclosed by the receiving Party, provided that in each such case the receiving Party provides the disclosing Party with prompt written notice of such order or requirement and reasonably assists the disclosing Party, at the disclosing Party’s expense, in seeking a protective order or other appropriate relief. In the event of any litigation or preparation for litigation related to Customer’s use of the Services or related projects, if Customer or any of Customer’s agents or representatives requires Supplier to provide expert testimony on behalf of Customer, or to gather data, research information, attend meetings, or perform other related services of any kind in support of Customer, Supplier shall provide such services and Customer shall compensate Supplier at a reasonable rate to be determined per hour per individual providing such services, plus all reasonable out-of-pocket expenses, including, but not limited to, travel, lodging, and meals where necessary.
The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or by law shall not constitute a waiver of that right, power or remedy. If a party waives a breach of any provision of this Agreement, this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
j. Compliance with Laws
Both Parties shall comply with all applicable local, state, national, and foreign laws, rules, and regulations including all applicable export and import laws and regulations in connection with their performance, access, and/or use of the Services under this Agreement. Customer shall comply with all legal duties applicable to Customer including obligations as data controller by virtue of Customer’s role in determining Authorized Users. Specifically, Customer shall provide relevant persons and/or participants with all information Customer is required by law to provide, and, if necessary, shall obtain the consent of these persons. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Authorized Users to access or use the Services in a U.S.- embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.
Neither Party may assign, delegate, or otherwise transfer this Agreement, in whole or in part, voluntarily, involuntarily, by operation of law, or otherwise without the other Party’s prior written consent; except that: (a) Supplier may assign, delegate, or otherwise transfer this Agreement without such consent in connection with any merger, consolidation, reorganization, or any sale of all or substantially all of such Party’s assets or any other transaction in which more than fifty percent (50%) of its voting securities are transferred (“Change in Control”) and Supplier’s prior written consent and subject to all of the terms of this Agreement. Any attempt to assign, delegate, or otherwise transfer this Agreement other than in accordance with this provision will be null and void.
If any provision, or part of a provision, of this Agreement is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of this Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement shall not be affected, unless otherwise required by operation of applicable law.
Any notice required to be given to a party under or in connection with this Agreement shall be in English and in writing (which includes email) and shall be delivered to the other party by hand or sent by recorded delivery to the address set out in the Order Form, for the attention of the person who signed such Order Form. Any notice shall be deemed to have been duly received if delivered by hand, when left at the address referred to above or, if sent by recorded delivery, on the second Business Day after posting or if this time falls outside business hours in the place of receipt, when business hours resume. In this paragraph, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
n. Governing Law, Jurisdiction & Binding Arbitration
Contractual disputes or claims), shall be governed by laws of Delaware. In the event of any dispute, the parties agree to submit the dispute to binding and confidential arbitration in Travis County, Texas. The prevailing party shall be entitled to attorney’s fees and costs (including expert witness fees) incurred as a result of the dispute.
o. Entire Agreement / Survival
This Agreement, together with the content of any web pages (as identified by any URLs contained herein), any exhibits, any future non-material modifications, and the Order Form(s) constitutes the entire agreement between the Parties with respect to the subject matter hereof and replaces any prior understandings, written or oral. Further, under no circumstances will the provisions of any document issued by Customer (including, but not limited to, any request for quotes or proposals, Customer purchase orders, non-disclosure agreements, or Customer exhibits to this Agreement and/or vendor forms or registrations with terms that conflict with this Agreement) be deemed to modify, alter, or expand the rights, duties, or obligations of the Parties under this Agreement, regardless of any failure of Supplier to object to such terms, provisions, or conditions. If there is any conflict between the terms of this Agreement and the Order Form, the Order Form will prevail. In addition to any rights that accrued prior to termination, the provisions of paragraphs: Paragraph 8 ("Warranties and Liabilities"), Paragraph 9 ("Intellectual Property Rights"), Paragraph 10 ("Confidentiality and Publicity"), Paragraph 12d ("Relationship of the Parties"), and Paragraph 12n ("Governing Law & Jurisdiction") and this Paragraph 12o ("Entire Agreement/Survival") shall survive any termination of this Agreement.