Terms and Conditions - Verisoul Customers
By agreeing (or issuing a purchase order in relation to) an order form, services quote, or other services-related purchasing document or agreement with Verisoul (“Company”), or otherwise proceed through any online sign-up, subscription, or purchase process that references these terms, Customer acknowledges, accepts, and agrees to all of the terms of this agreement. By entering into this agreement on behalf of a legal entity, Customer represents that it has the authority to bind such entity and its affiliates to the Terms and Conditions of this Agreement, and, accordingly, the Customer and its affiliates and subsidiaries shall be referred to as “Customer,” and together with Company, the “Parties” and, each, a “Party.”
1. DEFINITIONS. As used in this Agreement:
1.1 “Biometric Data” means a form of personal data based on an individual’s biometric identifier, such as an iris scan, fingerprint, voiceprint, hand geometry, or facial geometry, and that is used to identify an individual. As used in this Agreement, Biometric Data refers to both “biometric information” and “biometric identifiers” as those terms are defined under applicable laws, rules and regulations.
1.2 “Company Data” means data that is collected by Company from an End User or from an End User’s interactions with the Offering.
1.3 “Company IP” means the Offering, the Documentation, and any and all intellectual property embodied in, related to and derived from the foregoing. For the avoidance of doubt, Company IP does not include Customer Data.
1.4 “Customer Data” means information, data, and other content that is provided by Customer to Company for use by Company in providing the Offering and Support Services. For clarity, Customer Data includes data about End Users to the extent provided directly by Customer but excludes Company Data.
1.5 “Confidential Information” means all confidential, non-public information of the Discloser, including information related to the Discloser’s research and development, proprietary technologies, trade secrets, financial information, or business, marketing, and financial strategies, regardless, in each case, of whether such information is designated as “confidential” or with similar marking. With respect to the Company, the Terms and conditions of this Agreement (including pricing), information related to the Offering (including Company IP) and Company Data shall be the Company’s Confidential Information. With respect to Customer, non-public information related to its products and services and the Customer Data shall be Customer’s Confidential Information.
1.6 “Discloser” means the Party releasing or seeking to release Confidential Information.
1.7 “Documentation” means the user guides and release notes provided or made available by Company to Customer regarding the use or operation of the Offering or a Connector (as defined herein).
1.8 “End User” means a person who interacts or attempts to interact with Customer’s products or services.
1.9 “Offering” means Company’s hosted solution that provides fraud prevention, risk detection, uniqueness detection, liveness detection, and sign-up and sign-in capabilities, including all Documentation related thereto.
1.10 “Recipient” means the Party receiving or seeking to receive Confidential Information.
1.11 “Support Services” means the implementation and support services described in Schedule A.
1.12 “Third Party” means any individual, corporation, partnership, trust, limited liability company, association or other entity that is not either Party and that does not control, is not controlled by and does not share common control with either Party, where “control” of an entity means either (a) a direct or indirect ownership interest of more than 50% of such entity or (b) the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.13 “Uniqueness Session” means a session in which an end user wholly completes the Company’s anonymous biometrics verification software. “Order Form” means any means an ordering document entered into by the Parties describing the fees, subscription length and related terms for Customer’s access to the Offering and receipt of Support Services.
2. OFFERING AND SERVICES
2.1 Access Rights. During the term of this Agreement and contingent upon Customer complying with its obligations under this Agreement (including the usage restrictions set forth in Section 5.1), Company hereby grants Customer a non-exclusive, non-transferable right to access and use the Offering solely for use by employees or agents of Customer for Customer’s own internal business purposes.
2.2 Support Services. Company agrees to use commercially reasonable efforts to provide the Support Services.
2.3 Fraud Detection Data. Customer hereby agrees, as a condition to using the Offering, that it will provide feedback data on user fraud detection by providing, on at least a monthly basis, a periodic batch file to the Company, as agreed to by the Company and the Customer (“Fraud Detection Data”). Customer agrees that Company may use the Fraud Detection Data at any time during or after the Term of this Agreement for any reason.
2.4 Third Party Services. Customer acknowledges and agrees that the Offering operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by Third Parties (“Third Party Services”). Company is not responsible for the operation of any Third Party Services nor the availability or operation of the Offering to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Company does not make any representations or warranties with respect to Third Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a Third Party provider is solely between Customer and such Third Party provider and is governed by such third-party’s terms and conditions.
2.5 Updates. From time to time, Company may provide upgrades, patches, enhancements, or fixes for the Offering to its customers generally without additional charge (“Updates”), and such Updates will become part of the Offering and subject to this Agreement; provided that Company shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Company may make improvements and modifications to the Offering at any time in its sole discretion; provided that Company shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
2.6 License to API, SDK and Documentation. Subject to the terms of this Agreement, the applicable Order Form and any specific terms of use associated with the applicable API and/or SDK made available by Company from time to time (as applicable, a “Connector”), Company hereby grants to Customer a global, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free personal license to access and use the Connector and any associated Documentation, solely for internal use and solely in connection with Customer’s use of the Offering during the Term.
2.7 Inferences. From time to time, Company may provide Customer with inferences about End Users that are drawn by Company in connection with its collection of Company Data (“Inferences”). Notwithstanding anything to the contrary in this Agreement, Company does not represent or warrant that the Inferences will be accurate or error-free. As between the Parties, Customer is solely responsible for its use of Inferences in all respects, including any actions it may take or decisions it may make in connection with such Inferences. For clarity, the Parties agree that Company does not make any decisions about End Users through the use of Inferences.
3. TERM AND TERMINATION
3.1 Term. This Agreement and Customer’s subscription to the Offering pursuant to each Order Form shall become effective on the date the Customer first enters into an Order Form and, unless earlier terminated pursuant to Section 3.2, will continue in effect for the initial term stated on such Order Form (the “Initial Term”). Unless otherwise agreed in an Order Form, this Agreement and each such Order Form will automatically renew for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless earlier terminated pursuant to this Agreement or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable. With respect to each Renewal Term of an Order Form, Company may increase the Fees payable pursuant to such Order Form upon notice provided to Customer at least sixty (60) days prior to the commencement of such Renewal Term.
3.2 Termination or Breach. If either Party materially breaches this Agreement, the non-breaching Party will have a right to terminate this Agreement, provided that, for breach capable of cure, the non-breaching Party notifies the breaching Party in writing of the breach, gives the breaching Party 30 days to cure the breach, and the Agreement may be terminated if such breach is not cured within such 30-day period.
3.3 Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, Customer shall immediately discontinue use of the Offering. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
3.4 Survival. This Section 3.4 and Sections 1, 2.4, 4, 7, 9, 10.2, 11.3, and 12 survive any termination or expiration of this Agreement. No other provisions of these Terms survive the expiration or earlier termination of these Terms.
4. INTELLECTUAL PROPERTY AND DATA
4.1 Retention of Rights. Customer acknowledges and agrees that, as between the Parties, Company and its licensors own and retain all right, title and interest to the Company IP. Except for the access permissions explicitly granted in this Agreement, this Agreement does not confer to Customer any right of ownership or otherwise in the Company IP.
4.2 Customer Data. As between the Parties, Customer retains all right, title and interest in and to the Customer Data. Company may use Customer Data to (a) provide the Offering and Support Services to Customer and perform its obligations hereunder and (b) test, improve, and provide Company’s products and services; provided, that Company will disclose Customer Data used for the purposes described in this clause (b) solely in aggregated and anonymized form and in a manner that does not disclose Customer Data or Confidential Information of Customer.
4.3 Company Data. As between the Parties, Company retains all right, title and interest in and to the Company Data. To the extent any Company Data is made available to Customer, Customer may use such Company Data solely as necessary in connection with its use of the Offering and may not provide it to any third parties.
4.4 Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
4.5 License of Customer Marks. Customer hereby grants to Company a non-exclusive license to use the trademarks, trade names and service marks owned by Customer (the “Customer Marks”) to the extent necessary to provide the Offering, including but not limited to the display of the Customer Marks on customized versions of screens, printouts and deliverables displayed by or resulting from the use of the Offering. Company will comply with any trademark usage guidelines that may, from time to time, be provided by Customer with respect to the Customer Marks. All goodwill arising out of Company’s use of the Customer Marks will inure to the sole benefit of Customer.
5. CUSTOMER CONDUCT, RESTRICTIONS, AND RESPONSIBILITIES
5.1 Acceptable Use. Customer will not, 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 Offering or any software, documentation or data related to the Offering (except to the extent permitted by law); (b) modify, translate, or create derivative works based on the Offering (except to the extent expressly permitted by Company); (c) resell, sublicense or otherwise provide or use the Offering for the benefit of a third party; (d) remove any proprietary notices or labels; (e) use the Offering to build an application or product that is competitive with any Company product or service; (f) interfere or attempt to interfere with the proper working of the Offering or any activities conducted on the Offering; or (g) bypass any measures Company may use to prevent or restrict access to the Offering.
5.2 Export Controls. Export controls and sanctions laws of the United States and any other relevant local export controls and sanctions laws apply to the Services (collectively “Export Laws”). Customer agrees that the Export Laws govern its use of the Offering (including technical data) and any materials provided under this Agreement, and Customer agrees to comply with all Export Laws. Customer agrees that no data, information, software programs, or other materials resulting from Services (or that are a direct product thereof) will be exported, re-exported, transferred, or released, directly or indirectly, in violation of the Export Laws. Each party represents that it is not (i) named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, (ii) owned or controlled by or acting on behalf of any such persons or entities, or (iii) residing, located, operating or organized in a country or region subject to a United States trade embargo. Customer agrees that it will not access or use the Service in any manner that would cause any party to violate any Export Laws.
5.3 Prohibition on Root Identity Services. Without Company’s express prior written consent, Customer agrees not to cross-reference or utilize Company’s or End User Biometric Data, liveness, uniqueness, or fraud/risk determination results to provide verification or authentication services to a Third Party. For the avoidance of doubt, this clause is included to prevent Customer from providing to a Third Party any “Root Identity Services” wherein Customer references or stores an identity (anonymous, pseudonymous, legal, or otherwise) that was collected and/or determined through the use of the Offering and then uses that data/results to onboard, verify, or authenticate a user for a Third Party.
5.4 General Obligations. Customer is responsible and liable for all uses of the Offering, including all acts and omissions of its personnel. Customer shall make all personnel aware of the restrictions and obligations set forth in this Agreement applicable to the use of the Offering, and shall cause such personnel to comply with such provisions. Customer shall ensure that its personnel will: (i) be responsible for the security and/or use of their logon credentials; (ii) not disclose such logon credentials to any person or entity; (iii) not permit any other person or entity to use his or her logon identifier; (iv) use the Offering in accordance with all applicable laws, rules and regulations and (v) use the Offering in accordance with this Agreement and all applicable Documentation.
5.5 Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Customer’s access to any portion or all of the Offering if: (i) Company reasonably determines that (A) there is a threat or attack on the Offering; (B) Customer’s use of the Offering disrupts or poses a security risk to the Offering or to any other customer or vendor of Company; (C) Customer is using the Offering for fraudulent or illegal activities or otherwise in violation of this Agreement; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Company’s provision of the Offering to Customer is prohibited by applicable law; or (ii) if Customer fails to pay amounts when due in accordance with Section 7.1 (any such suspension described in sub-clause (i) or (ii), a “Service Suspension”). Company shall use commercially reasonable efforts to provide prior notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Offering following any Service Suspension. Company shall use commercially reasonable efforts to resume providing access to the Offering as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
6. SECURITY AND PRIVACY
6.1 Security. Company will maintain commercially reasonable administrative, physical and technical safeguards for the Offering designed to protect against the accidental or unauthorized access, use, alteration or disclosure of Customer Data uploaded to, or ingested by, the Offering and processed or stored on a computer and/or computer network owned or controlled by Company in connection with the Offering. If, at any time, Company fails to comply with this Section, Customer may promptly notify Company in writing of any such noncompliance. Company will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement and any Order Form entered into hereunder as its sole and exclusive remedy for such noncompliance.
6.2 Privacy. Each Party’s use of Personal Data shall be in compliance with Applicable Data Protection Laws. Customer represents and warrants the accuracy, integrity, and legality of Customer Data, including its compliance with any applicable terms or conditions thereof. Customer represents and warrants that it owns all right, title and interest in and to the Customer Data or otherwise has sufficient rights in and to the Customer Data to permit its use as contemplated hereunder. If Customer is required by Applicable Data Protection Laws to obtain End User consent to process Personal Data through the Offering, Customer shall prohibit End Users from accessing the Offering if such consent is not obtained in conformance with Applicable Data Protection Laws, and permitting End User to access the Offering without such consent shall be a material breach of the Agreement by Customer.
7. PAYMENT OF FEES
7.1 Fees. Customer agrees to pay Company for the use of the Offering in accordance with the Order Form(s) without offset or deduction. Fees shall be invoiced on the 1st of the month or soon thereafter for the previous month’s usage of the Offering. All fees and amounts are expressed herein and payable in US Dollars (including USDC crypto currency) unless otherwise specified and agreed upon.
7.2 Invoices. All invoiced amounts shall be due and payable no later than the date set forth in Section 7.1. Each payment of fees due hereunder shall be made in the manner specified in this Agreement, or by such other means as may be approved by The Company in writing. If The Customer does not object in writing to an invoiced amount within fifteen (15) calendar days of receiving an invoice, Customer shall be deemed to accept the invoice as the proper amount due to The Company, and will have voluntarily and knowingly waived its right to dispute the amount. Late payments will result in a two and a half percent (2.5%) penalty of the total of the late invoice being added to the following invoice, and will bear interest at the rate of one percent (1%) per month, or the maximum amount permitted by law, whichever is less. The Customer shall be liable for all expenses incurred by The Company for collecting amounts owed by The Customer hereunder, including actual incurred legal fees and costs. The Company shall have no obligation to perform its duties under the Agreement if The Customer fails to make timely payments of any amount owed following The Customer’s receipt of a notice of nonpayment and its failure to pay in full within (15) business days of receipt. In such case, The Company will have the right in its sole discretion, without liability to Customer, to immediately and without formal notice suspend performance of any of its obligations under the agreement as long as the payment remains outstanding.
7.3 Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company’s income. To the extent that Customer is required to withhold any amounts from any fees payable hereunder to pay any applicable withholding or similar taxes, then the amount of such fees shall automatically be deemed to be increased such that the amount received by Customer following the application of such withholding shall be equal to the amount that would have been received by Company if such withholding requirement did not apply.
8. MARKETING AND PROMOTION
Marketing by Company. In addition to the terms set forth in Section 4.5, Customer grants Company the right to use Customer Marks for the general purposes of promoting Company and the Offering, including usage on its website, in marketing case studies, and in similar press releases. Company agrees to use such materials only in the form provided and with appropriate legends as may be prescribed by Customer from time to time.
9. CONFIDENTIALITY
Each Recipient understands that the Discloser has disclosed or may disclose Confidential Information throughout the Term. The Recipient agrees to: (i) take reasonable precautions to protect such Confidential Information; (ii) not use such Confidential Information except in connection with the performance of its obligations or exercise of its rights pursuant to this Agreement; and (iii) not disclose any Confidential Information to any person other than the Recipient’s employees or consultants who have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations hereunder. The foregoing shall not apply to information the Receiver can document (a) is or becomes generally available to the public other than through any act or omission of the Recipient,; (b) was in its possession or known by the Recipient without restriction as to use or disclosure prior to receipt from the Discloser; (c) was rightfully disclosed to it without restriction by a third party who is under no restriction with respect to such information; (d) was independently developed by the Recipient without use of, or reference to, any Confidential Information of the Discloser. Notwithstanding the foregoing, a Recipient may disclose Confidential Information to the limited extent required (1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Recipient shall, to the extent permitted pursuant to applicable law, rule or regulation, first have given written notice to the Discloser and made a reasonable effort to obtain a protective order or (2) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of this Agreement, each Recipient shall promptly return to the Discloser all copies, whether in written, electronic, or other form or media, of the Discloser’s Confidential Information, or destroy all such copies.
10. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
10.1 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that it (i) is a corporation duly organized, validly existing, and in good standing under the laws of its place of formation; (ii) has the necessary power and authority to execute and deliver this Agreement, to grant rights and licenses granted herein, and to perform all of its obligations hereunder, and no consent or approval of any other person or governmental authority is required therefore; and (iii) that it is not aware of any currently applicable laws, regulations, or orders in effect in any other jurisdiction that would prevent it from exercising its rights or performing its obligations pursuant to this Agreement.
10.2 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN THE COMPANY MAKES NO WARRANTIES THAT THE OFFERING OR THE SUPPORT SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE OFFERING OR SUPPORT SERVICES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE OFFERING AND THE SUPPORT SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.3 Beta Services. From time to time, Company may, in its sole discretion, invite Customer to use, on a trial basis, pre-release or beta features that are in development and not yet available to all customers (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Company will provide to Customer prior to Customer’s use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Company’s Confidential Information and subject to the confidentiality provisions in this Agreement. Customer agrees that it will not make any public statements or otherwise disclose its participation in the Beta Services without Company’s prior written consent. Company makes no representations or warranties that the Beta Services will function. Company may discontinue the Beta Services at any time in its sole discretion, with or without notice to Customer. Company will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. Company may change or not release a final or commercial version of a Beta Service in our sole discretion.
11. INDEMNIFICATION
11.1 Indemnification by Company. Company shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any Third Party claim, suit, action, or proceeding (“Third-Party Claim”) that Customer’s permitted use of the Offering infringes or misappropriates such third party’s copyright or United States registered patent or trademark provided that Customer promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Company, at Company’s sole discretion, to (A) modify or replace the Offering, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue to use the Offering in substantially the same manner as contemplated in this Agreement and the applicable Order Form. If Company determines that neither alternative is reasonably available, Company may terminate this Agreement and each outstanding Order Form, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 11.1 will not apply with respect to portions or components of the Offering (I) not created by Company, including but not limited to Customer Data or Third-Party Products, (II) that are modified by anyone other than Company where the alleged infringement relates to such modification, (III) combined with other products, processes or materials where the alleged infringement relates to such combination, (IV) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (V) where Customer directed the development of the feature or functionality that gives rise to the alleged infringement; or (VI) where Customer’s use thereof is not strictly in accordance with this Agreement and the Documentation.
11.2 Indemnification by Customer: Customer will indemnify, hold harmless and, at Company’s option, defend the Company from and against, any and all Losses resulting from: (a) any Third-Party Claim related to the conduct of Customer’s business, except to the extent the claim is solely attributable to the actions of the Company; (b) any Third-Party Claim related to Customer Data, including any such Third-Party Claim alleging that Customer does not possess adequate rights to provide Customer Data to Company for use as contemplated in this Agreement; (c) any Third-Party Claim excluded from the indemnity obligation set forth in Section 11.1 above, and (d) any Third-Party Claim related to Customer’s use of Inferences; provided, in each case that, if Company requests Customer to assume the defense of any such Third-Party Claim, Customer may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim at Customer’s expense or to participate in the defense thereof by counsel of its own choice.
11.3 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW AND FOR A CLAIM ARISING UNDER BREACH OF CONFIDENTIALITY OR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY SHALL BE LIABLE UNDER ANY LEGAL THEORY, INCLUDING BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR: (A) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF REVENUE, LOSS OF ENTERPRISE VALUE, LOSS OF DATA, LOSS OF GOODWILL OR REPUTATION OR COST OF SUBSTITUTE SERVICES OR (B) AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO COMPANY UNDER THE APPLICABLE ORDER FORM IN THE 12 MONTHS PRIOR TO THE ACT OR OMISSION THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. MISCELLANEOUS
12.1 Equitable Relief. The Company may enforce any provision of this Agreement by obtaining equitable relief in addition to all other remedies at law or under this Agreement. The Company's remedies at law for a breach of any provision of this Agreement are inadequate and The Company will suffer irreparable harm from any such breach. The rights and remedies of Company under this Agreement are cumulative and not alternative and are in addition to any other right or remedy set forth in any other agreement between the Parties, or which may now or subsequently exist at law or in equity, by statute or otherwise.
12.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page to this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission to the intended recipient) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
12.3 Force Majeure. In no event shall Company be liable to Customer or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, epidemic or pandemic, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
12.4 Waiver of Breach. No waiver by either Party of any breach of this Agreement will constitute a waiver of any other breach of the same or other provisions of this Agreement. No waiver by either Party will be effective unless made in writing and signed by an authorized representative of that Party.
12.5 Governing Law. This Agreement and any claim arising from this Agreement will be governed by and interpreted in accordance with the laws of the State of New York, without regard to conflicts of laws and principles.
12.6 Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration (to be held in English) in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each Party will have a right to seek injunctive or other equitable relief in a court of law from any court of competent jurisdiction. The prevailing Party will be entitled to receive from the non-prevailing Party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing Party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Each Party hereby consents to the arbitration in the borough of Manhattan in New York, New York.
12.7 Assignment. This Agreement will be binding upon Company's or Customer's successors or assigns, as the case may be. Neither this Agreement nor any of Customer's rights, privileges, duties or obligations under this Agreement may be assigned, sublicensed, sold, mortgaged, pledged or otherwise transferred or encumbered by Customer (including by operation of law or in connection with a merger, change of control or sale of all or substantially all of Customer’s assets) without the prior written consent of Company.
12.8 Interpretation. For purposes of interpreting this Agreement, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph; (c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; (d) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; and (e) the captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
12.9 Severability. If any provision in this Agreement is invalid or unenforceable in any circumstance, its application in any other circumstances and the remaining provisions of this Agreement will not be affected thereby.
12.10 Entire Agreement. This Agreement, together with its Schedules and each Order Form entered into hereunder, constitutes the entire agreement and understanding of the Parties relating to the subject matter hereof. This Agreement supersedes all prior written and oral agreements and all other communications between the Parties. Amendments to this Agreement will be effective only if written and signed by the Parties.
12.11 No Third Party Beneficiaries. Except as expressly provided in this Agreement, each Party intends that this Agreement will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than Customer and Company.
12.12 Headings; Interpretation. The Section headings in this Agreement are for identification purposes only and will not affect the interpretation of this Agreement. Unless business days are specified, all references to “days” means calendar days.