Legal

MASTER SERVICES AGREEMENT

Last Modified: 6/3/2024

Bold Technologies, Ltd., Perennial Software, LLC and Secure Global Solutions, LLC (individually and collectively referred to as “Bold Group” or “Company”) requires users of its services, including any entity executing an order acknowledgement form (“Customer”) that references these terms to accept and adhere to these terms and conditions (the, “Agreement”). This Agreement governs the purchase and use of Company’s products and services and is accepted by executing an order acknowledgement form that references this Agreement or by requesting, receiving, using or accessing Company’s product and services. Company may update this Agreement from time to time and Customer will have 30 days to reject the updated terms by providing written notice to Company. If Customer continues to use or receive the products and services following such period, the updated Agreement will be deemed accepted.

  1. Order Acknowledgement. Services will be ordered by Customer pursuant to executed order acknowledgement forms (each, an “Order Acknowledgement”). Each Order Acknowledgement will include the specific products and services being ordered and the associated fees and any additional terms as applicable. Each additional Order Acknowledgement will upon execution by both parties be deemed an addendum hereto and will be subject to all of the terms and conditions herein. Any one of Customer’s subsidiaries or affiliates may also order services under this Agreement by entering into an Order Acknowledgement signed by such subsidiary or affiliate and Company and agreeing to be bound by the terms of this Agreement and such Order Acknowledgement.
  2. Products and Services.
    • 2.1 Hardware. Customer is responsible for maintaining an environment which is adequate for the high performance and quality operation of the products and services, including any requirements arising from changes in specifications, such requirements may include minimum standards of disk storage, communication bandwidth and internet connectivity. Customer is solely responsible for acquiring, servicing, maintaining and updating all workstations, equipment, computers, software and communications services, not owned or operated by or on behalf of Company, that support Customer’s access to and use of the Services and for all expenses related thereto. Customer may request Company to provide certain hardware for use in support of the Services, any such items provided by Company to Customer are the “Products.” Customer will access and use the Services only in accordance with the then current Documentation provided by Company. Shipping charges, including freight and administrative fees, are the responsibility of Customer.
    • 2.2 Services. The services described in Sections 2.3 through 2.7 below are individually and collectively referred to in this Agreement as the “Services.”
    • 2.3 On-Premises Software. Subject to Customer’s timely payment of fees required hereunder and compliance with the terms herein, Company grants to Customer a non-exclusive, non-transferable, revocable license to use the then current versions of those components of the Services identified in executed Order Acknowledgements, which includes any written materials including user guides, documentation and training materials (“Documentation”) provided by Company. Customer may not grant any third party access to any administrative functions of the Software including, but not limited to, survey creation and editing, report creation and editing, user management functions, and system administrative functions. Customer may use one copy (instance) of the Software on a single server or single web farm environment for production purposes and one copy of the Software on a single server or single web farm environment for testing and/or development purposes. Customer may use additional copies of the Software on additional servers or web farm environments only if agreed to in writing by Company and only if all applicable license fees have been paid.
    • 2.4 Hosted Services. Subject to Customer’s timely payment of fees required hereunder and compliance with the terms herein, Company grants to Customer a non-exclusive, non-transferable, revocable license to use the then current versions of those components of the Services identified in executed Order Acknowledgements, which includes any written materials including user guides, documentation and training materials (“Documentation”) provided by Company. Customer shall be responsible for each user’s use of the Service in accordance with the terms of this Agreement.
    • 2.5 Implementation Services. Customer may select Company to provide implementation services. Upon the request of Customer, Company shall supply conversion services following delivery and installation of the product to assist the Customer to convert Customer’s existing data to a usable format for the Services. Customer is responsible to provide a copy of the source data for conversion in the format required by Company. Customer is solely responsible for the complete review of all converted data, correcting any errors, and entering any information to ensure completeness.
    • 2.6 Maintenance and Support. Customer is responsible to maintain current software versions no more than .2 versions from the most current version offered by Company. Customer agrees that Company may install software updates, error corrections, and software upgrades to the Services as Company deems necessary from time to time. All such updates, error corrections and upgrades will be considered part of the Services for purposes of this Agreement. Company will have no liability for modifications to, or suspension or discontinuance of the Services, or any part thereof, whether with or without notice to Customer.
    • 2.7 Professional Services. Customer may request training, report development, consulting or other services (“Professional Services”) from Company. Professional Services will be requested via Order Acknowledgements and may be subject to additional terms as provided in a Statement of Work.
    • 2.8 Application Programming Interfaces (“APIs”).
      • 2.8.1 Customer. Customer may request access to certain Company software development kits to develop integrations with Company Products and Services and Customer’s own branded applications. Any license or use of such software development kits will be subject to a separate agreement, which will be made available to Customer in Company’s sole discretion upon Customer’s request.
      • 2.8.2 Third Party. Customer may request access for third parties to certain Company software development kits to develop integrations with Company Products and Services and third party applications. Any license or use of such software development kits will be subject to a separate agreement, which will be made available to such third party in Company’s sole discretion upon Customer’s request.
  1. Use of Products and Services.
    • 3.1 Accounts; Security. Access to or use of certain portions and features of the Products and Services may require you to create an account (“Account”). Customer represents that all information provided by it is current, accurate, complete, and not misleading. Customer further warrants that it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Customer is entirely responsible for maintaining the confidentiality and security of its Account(s), including the password(s). Accounts are not transferrable. Customer agrees to promptly notify Company if Customer becomes aware or suspects any unauthorized use of its accounts, including any unauthorized access or attempted access. Customer is responsible for all activities that occur under its Account(s). Further, Customer is the primary account holder and is responsible for all charges made by additional users added to Customer’s account(s). A user license is required for each person utilizing Customer’s master account, or other data generated through the use of the Services. Any sharing of such data or manipulation of Accounts to reduce the number of licenses required or sharing account information in any way is strictly prohibited. Company may audit Customer’s account for compliance with this provision and Customer will cooperate with Company’s reasonable requests for documentation to support Customer’s use of the Products and Services. If Customer has violated this provision, Customer will immediately execute a new Order Acknowledgement to add the required licenses and pay any applicable fees accordingly.
    • 3.2 Restrictions on Use. In accessing or using the Products and Services, Customer will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Services; (c) apply systems to extract or modify information in the Service using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) knowingly input or post through or to the Services any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others, (e) store data on the Service that is regulated by the HIPAA Privacy Rules or the PCI Data Standards (f) input or transmit through or to the Services any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Services or grant unauthorized access thereto; (g) use or access the Services for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes; or (h) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (i) use the Services to compete with Company in any way; or (j) permit any third party to use or access the Services other than your direct employees or contractors who are acting on your behalf.
    • 3.3 Applicable Laws. Customer’s access to and use of the Products and Services is subject to all applicable international, federal, state and local laws and regulations. Customer may not use the Products and Services or any information data or Customer Content in violation of or to violate any law, rule or regulation. Ensuring Customer’s use of the Products and Services is compliant with applicable laws is the responsibility of Customer.
    • 3.4 Suspension of Service. Company has the right to immediately suspend the Service (a) in order to prevent damage to or degradation of the Service or unauthorized or non-compliant use or (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, or (c) if, following notice from Company, Customer has failed to pay any amounts due and owing. In the case of (a) or (b) Company will give Customer prior notice if reasonable and will ensure that the Service is restored as soon as possible after the event given rise to suspension has been resolved to Company’s reasonable satisfaction.
  2. Data Licenses.
    • 4.1 Customer Content on Hosted Services. As between Company and Customer, all title and intellectual property rights in and to all electronic data or information submitted to and stored in the Service that is owned by Customer (“Customer Content”) are owned by Customer. Customer acknowledges and agrees that in connection with the provision of the Services, Company may store and maintain Customer Content for a period of time consistent with Company’s standard business processes for the Service.  Following expiration or termination of the Agreement or a Customer account, if applicable, Company may deactivate the applicable Customer account(s) and delete any data therein.  Customer grants Company the right to host, use, process, display and transmit Customer Content to provide the Services pursuant to and in accordance with this Agreement and the applicable Order Form. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining all rights related to Customer Content required by Company to perform the Services.
    • 4.2 Aggregated Data. Customer agrees that, subject to Company’s confidentiality obligations in this Agreement, Company may (a) capture data regarding the use of the Products and Services by Customer, (b) collect metrics and data included in the Company Content, and (c) aggregate and analyze any metrics and data collected pursuant to subsections (a) and/or (b) of this sentence (collectively, the “Aggregated Data”). Customer agrees that Company may use, reproduce, distribute and prepare derivative works from the Company Content, solely as incorporated into Aggregated Data, provided that under no circumstances will Company use the Aggregated Data in a way that identifies Customer or its users as the source of the data.
  3. Third Party Services.
    • 5.1 Linking. Except as expressly permitted in this Agreement or as otherwise agreed by Company in writing, Customer is prohibited from linking to the Service, framing of all or any portion of the Service, and extracting data from the Service. Company reserves the right to disable any unauthorized links or frames. Company will not be responsible and expressly disclaims any liability for any third party services that Customer may use or connect to through the Service. If Customer activates any APIs or links to enable data sharing through the Service or directs Company to do so on its behalf, Customer thereby authorizes Company to send and receive Customer Content with any such activated third-party service and represents and warrants to Company that Customer has all appropriate right and title to grant such authorization. Customer will be solely responsible for any third-party fees related to the third-party services and compliance with any applicable third-party service terms.
    • 5.2 Company Provided Third Party Products. Company may distribute or incorporate certain third-party products with the Products and Services. This Agreement does not include any operating system, or database management systems to operate the Products and Services. Customer has sole responsibility to obtain the appropriate licenses to these items. Company may provide recommendations for the same upon request. Company provide third party products are subject to their own applicable licenses and terms. If Customer does not agree to these terms, Customer should not install or use such third party products.
  4. Intellectual Property.
    • 6.1 Proprietary Rights. Company’s intellectual property, including without limitation the Services, its trademarks and copyrights and excluding any Company Content contained therein, and any modification thereof, are and will remain the exclusive property of Company and its licensors. No licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement.
    • 6.2 Feedback. Customer agrees that advice, feedback, criticism, or comments provided to Company related to the Products and Services are given to Company and may be used by Company freely and without restriction and will not enable Customer to claim any interest, ownership or royalty in Company’s intellectual property.
  5. Payment and Taxes.
    • 7.1 Fees.
      • 7.1.1 One-Time Fees. One-Time Fees as identified in the Order Acknowledgement will be invoiced as of the date of the last signature on the Order Acknowledgement and are non-refundable. Company will not be obligated to provide any Products or Services until payment of One-Time Fees has been received in full.
      • 7.1.2 Recurring Fees. Recurring Fees as identified in the Order Acknowledgement will be invoiced according to the terms identified in the Order Acknowledgement and are payable in advance. Recurring Fees are billed in full months and are not prorated based on the date of the month. Recurring Fees are effective as of the date of delivery of the software which is defined as 30 days after user acceptance testing starts, as established in an email from Company to Customer, whether or not the software is fully configured or Customer’s data is fully loaded and accessible, or six months after the date of the last signature of the Order Acknowledgement, whichever is earlier (the “Delivery Date”).
      • 7.1.3 Additional License Recurring Fees. Recurring Fees for additional licenses as identified in the Order Acknowledgement will be invoiced as of the date of license delivery, which is defined as the date of delivery of the username(s) and password(s) for such license(s).
      • 7.1.4 Usage Fees. Usage based fees will be billed in arrears in accordance with the periods identified in the Order Acknowledgement.
      • 7.1.5 Service Hour and Training Hour Packages. Packages of service hours and training hours (“Hours”) are sold in hourly allotments, pre-paid in advance and subject to expiration. Hours cannot be used more than six months after the date of the last signature on the Order Acknowledgement. Any Hours that remain unused six months after the date of the last signature on the Order Acknowledgement will expire.
      • 7.1.6 Travel and Expenses. If Customer requests onsite Services, Customer shall reimburse Company for all related travel and expenses to provide such services. Travel and expense costs will be invoiced as incurred in accordance with Company’s travel and expense policy.
    • 7.2 Payment. Fees are set forth in the applicable Order Acknowledgement (“Fees”). Company will send invoices to the contact(s) provided in an Order Acknowledgement. Unless otherwise set forth in the applicable Order Acknowledgement, Fees are due and payable by Customer within 15 days of the date of the invoice for such Fees. Undisputed amounts that are past due will be subject to a monthly charge of 1.5% per month or the maximum rate permitted by law, whichever is less. If Customer wishes to dispute any fees, Customer must notify Company in writing of such dispute within 60 days of the date of the invoice, otherwise the right to contest any amounts is waived. Customer agrees to pay all reasonable costs of collection in the event any amount is not paid when due. Company, upon notice to Customer, which notice may be in the form of an invoice, will have the right to change Fees effective any time after the first year from the Effective Date as defined below, which right will include without limitation the right to charge a Fee for new features or functions of the Services or for features or functions that have previously been offered at no charge. Unless otherwise noted in the Order Acknowledgement, all Fees are payable in United States Dollars, and non-refundable.
    • 7.3 Automatic Payment Terms. Customer authorizes Company to charge the credit card information provided, or debit the bank account information provided, as applicable, beginning as of the Effective Date and monthly thereafter, for all applicable fees due as defined in the Agreement. Customer understands that this authorization will remain in effect until it is canceled in writing and agrees to notify Company in writing of any changes in Customer’s account information or termination of this authorization at least 15 days prior to the next billing date. If the payment date falls on a weekend or holiday, Customer understands that payments may be executed on the next business day. For ACH debits to a checking/savings account, Customer understands that because these are electronic transactions, these funds may be withdrawn from Customer’s account as of the payment date, and that it will have limited time to report and dispute errors. In the case the ACH transaction is returned for Non Sufficient Funds (“NSF”) Customer understands that Company may at its discretion attempt to process the charge again within 30 days, and agrees to an additional charge for each attempt returned NSF, which will be initiated as a separate transaction from the authorized payment. Customer has certified that the business bank account information provided is enabled for ACH transactions, and agrees to reimburse Company for all penalties and fees incurred as a result of Customer’s bank rejecting ACH debits or credits as a result of the account not being properly configured for ACH transactions. Both parties agree to be bound by NACHA Operating Rules as they pertain to these transactions. Customer acknowledges that the origination of ACH transactions to its account must comply with the provisions of U.S. law.  Customer agrees not to dispute these scheduled transactions with its bank or credit card company provided the transactions correspond to the terms indicated in this Agreement.
    • 7.4 Taxes. Company Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes for which Customer is responsible under this Section. Company may invoice taxes to Customer and Customer will pay such taxes unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
  6. Term and Termination.
    • 8.1 Term. This Agreement will be effective as of the date of the last signature (“Effective Date”) on an initial Order Acknowledgement (“Initial Order Acknowledgement”) and remain in effect until (a) all executed Order Acknowledgements have expired or been terminated or (b) terminated by either party as permitted by this Agreement. Unless otherwise stated in the Initial Order Acknowledgement, the initial term of the Initial Order Acknowledgement will be three years from the Effective Date, thereafter, the Order Acknowledgement will automatically renew for successive one-year periods unless cancelled by either party in accordance with this Agreement. Unless otherwise provided in an Order Acknowledgement, all subsequent Order Acknowledgements will be effective as of the stated state in such Order Acknowledgement and will continue until the end of the then current term of the Initial Order Acknowledgement. For the avoidance of doubt, unless otherwise expressly agreed in an Order Acknowledgement, the Initial Order Acknowledgement will establish an initial term period and renewal term periods and all subsequent Order Acknowledgements will be co-terminus with such terms.
    • 8.2 Termination. Notices required under this section must be in writing on company letterhead, signed by an authorized representative of the sender. Once executed Order Acknowledgements may not be cancelled in whole or in part except as provided in this section. Either party may terminate this Agreement or any Order Acknowledgement in whole or in part by providing 90 days’ written notice prior to the end of the then current term. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms if the breaching party has failed to cure such breach (if curable) within 60 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property.
    • 8.3 Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (a) Customer will immediately cease using the Products and Services; (b) Company may immediately and permanently destroy Customer Content; (c) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential Information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement); and (d) any unpaid, undisputed amounts due through termination will become immediately due and payable.
    • 8.4 Survival. Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Customer’s payment obligations under this Agreement.
  7. Confidential Information.
    • 9.1 Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The Service, all features and functions thereof and related pricing and product plans will be the Confidential Information of Company.
    • 9.2 Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.
    • 9.3 Exclusions. The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.
  8. Disclaimers. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT COMPANY WILL CORRECT ALL ERRORS OR THAT THE PRODUCTS AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE PRODCUTS AND SERVICES THAT ARISE FROM CUSTOMER CONTENT OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. COMPANY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
  9. Limitation of Liability. IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THE PRODUCTS, SERVICES OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO COMPANY IN THE 6 MONTH(S) PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.
  10. Indemnification. Customer agrees to defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates by a third party arising out of or related to the Customer Content or Customer’s use of the Products and Services.
  11. Publicity. Customer hereby consents to Company identifying Customer as a customer by name and logo in Company’s promotional materials, subject to Customer’s right to revoke such consent in writing at any time. Upon such revocation, Company will have 30 days to process Customer’s request.
  12. Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Company. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.
  13. Notices. Any notice required under this Agreement will be provided to the other party in writing. If Customer wishes to provide notice to Company, Customer will send notice via email to: [email protected]. Company will send notices to one or more contact(s) on file for Customer. Notices from Company, other than for a breach of this Agreement may be provided within the Service.
  14. Attorney’s Fees. In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.
  15. Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
  16. No Third Party Beneficiaries. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
  17. Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.
  18. Force Majeure. Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.
  19. Limitation of Claims. No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Customer more than six months after it first have actual knowledge of the facts giving rise to the cause of action.
  20. FCPA Compliance. Customer will comply with the United Stated Foreign Corrupt Practices Act (as amended) and any analogous law or regulations existing in any other country or region in the Territory, in connection with its performance under this Agreement. Customer shall not make any payment, either directly or indirectly, of money or other assets, including but not limited to compensation derived from this Agreement, to government or political party officials, candidates for government or political office, or representatives of other businesses or persons acting on behalf of the foregoing, that would violate any applicable law, rule or regulation.
  21. Export Compliance. Customer must comply with United States, foreign and international laws and regulations, including without limitation, the United States Export Administration Regulations and the United States Office of Foreign Asset Control regulations, and other anti-boycott and import regulations. Such export laws govern use of the Products and Services including technical data and any Service deliverables provided under this Agreement and Customer agrees to comply with all such laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer is solely responsible for ensuring that no data, information, software programs and/or materials resulting from the Products and Services (or direct product thereof) will be exported directly or indirectly in violation of these laws. Customer will indemnify Company for any violation by Customer of any applicable export controls or economic sanctions laws and regulations.
  22. Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in all respects in accordance with the laws of the state of Delaware, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive venue and jurisdiction of the federal courts of the city and county of Denver, Colorado. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
  23. Severability, Waiver and Amendment. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. Unless otherwise provided herein, no waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.
  24. Counterparts, Entire Agreement and Order of Precedence. This Agreement or any Order Acknowledgement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement, together with any Order Acknowledgements states the entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the terms and conditions of an Order Acknowledgement; and (b) the terms and conditions of this Agreement. Any preprinted terms on any purchase order are hereby expressly rejected by Company and will be of no force or effect.