Last Modified: May 14, 2020
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this “Agreement”) by and between Unit21 Inc., a Delaware corporation with offices at 95 Federal St., Unit 3A, San Francisco, CA 94107, USA (“Vendor”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the earlier of the date that Customer (i) clicks “Accepted and Agreed To” (or similar button or checkbox), or (ii) executes an SOW (as defined below) referencing these terms (such date, the “Effective Date”). Customer’s use of and Vendor’s provision of Vendor’s Services (as defined below in Section 1.8) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1 “API” means Vendor’s application program interface, or file ingestion, through which Customer sends Customer Data used in providing the Services.
1.2. “Customer Data” means data in electronic form input or collected through the Services by or from Customer or the Users including without limitation information related to Customer’s clients or potential clients as well as information related to payment or payment related events facilitated, processed or otherwise recorded by Customer.
1.3. “Derived Data” means (i) any data that is derived by Vendor while processing Customer Data and (ii) Customer Data that is aggregated and anonymized or sufficiently different from Customer Data such that Customer Data cannot be identified from analysis or further processing of such derived data, including any improvements, customizations or developments thereto.
1.4. “Documentation” means Vendor's standard documentation related to use of the Services, as well as docs.unit21.ai (password: zeroengineeringintegration).
1.5. “Feedback” means any suggestion, idea, enhancement request, or recommendation for improving or otherwise modifying any of Vendor’s Services provided by the Customer or a User, excluding any Customer Data and any Confidential Information of Customer.
1.6. “Marks” means trademarks, service marks, logos, symbols, and trade dress.
1.7. “Payment Schedule” means the Vendor’s payment schedule included in an SOW.
1.8. “Services” means services using the System to identify and investigate potential money laundering in Customer Data as detailed in the SOW, including any improvements, customizations or developments thereto, but for purposes of clarification, excluding any Customer Data and any Confidential Information of Customer.
1.9. “SOW” means the Vendor’s statement of work which includes the description of different modules of the Services and specifications of the System, as well as the applicable Payment Schedule, which shall be signed separately between the Parties and shall reference these terms of service.
1.10. “System” means Vendor’s API and Workbench, including any improvements, customizations or developments thereto.
1.11. “SLA” means Vendor’s standard service level agreement.
1.1. “Term” is defined in Section 11.1 below.
1.12. “Transition Period” means a period not to exceed two (2) weeks post-termination (unless otherwise agreed to in writing by Vendor) during which the provisions of Section 11.5 shall apply.
1.13. “Usage Data” means any data reflecting access or use of the Services by the Customer or a User, to the exclusion of any Customer Data and including any improvements, customizations or developments thereto.
1.14. “User” means any individual who uses the Services on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
1.15. “Vendor Associates” means Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.
1.16. “Workbench” means Vendor’s investigations operations web portal which the Customer can access for insights and analyses related to anti-money laundering compliance surfaced by Vendor.
2.1. Services. During the Term, Vendor will provide Customer with the Services.
2.2. Customer’s Duties.
(a) Customer will reasonably cooperate with Vendor in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Vendor may reasonably request to assist in its provision of the Services.
(b) Customer will also cooperate with Vendor in establishing login and authentication control mechanisms for the System or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
(c) In order for Vendor to deliver the Services, Customer must provide Customer Data. The Customer Data may be delivered through the API or by uploading the file on the Vendor Workbench.
2.3. Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Services.
2.4. Service Suspensions. Vendor shall use commercially reasonable best efforts to prevent any interruption to the Services. Notwithstanding the foregoing, Vendor may reasonably suspend Customer’s access to the Services: (i) for maintenance, or (ii) while Customer is in breach of this Agreement.
2.5. Support. Vendor will provide support to Customer for the Services in accordance with the SLA.
2.6. Service Revisions. Vendor may revise the features and functions of the Services at any time, provided that if any such revision to the Services materially reduces the features or functionality used by Customer, such revision shall not be valid unless expressly agreed to in writing by Customer.
3.1. Subscription Fees. Customer shall pay Vendor the fee set forth in the SOW (the “Subscription Fee”) in U.S dollars. Vendor’s invoices will be emailed to the Customer and are due within 30 days of the date they are emailed.
3.2. Taxes. Amounts due under this Agreement are payable to Vendor without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Customer shall separately pay Vendor the withheld or deducted amount. However, the prior two sentences do not apply to Vendor’s payroll taxes or taxes based on Vendor’s net income.
4. CUSTOMER DATA & PRIVACY.
4.1. Risk of Exposure and Data Security. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Services, Customer assumes such risks. Vendor agrees to conform to commercially reasonable industry security requirements but Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.2. Data Accuracy. Vendor will have no responsibility or liability for the accuracy, reliability and appropriateness of data uploaded by Customer or its Users, including without limitation Customer Data.
4.3. Derived and Usage Data. Notwithstanding the provisions above of this Article 4, Vendor shall be the owner of any Derived Data and Usage Data and shall have the right to use, reproduce, sell, publicize, or otherwise exploit Derived Data and Usage Data in any way, in its sole discretion.
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer shall not and will not permit any third party to: (a) use the Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Services; (b) provide System passwords or other log-in information to any third party; (c) share non-public Services features or content with any third party; (d) access the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services; (e) engage in web scraping or data scraping on or related to the Services, including without limitation collection of information through any software that simulates human activity or any bot or web crawler; or (f) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the APIs or any related software, documentation or data related to the APIs (provided, that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the APIs or software; except as expressly permitted herein. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Vendor may suspend Customer’s access to the Services without advanced notice, in addition to such other remedies as Vendor may have. Vendor shall be free to take any action it sees fit against Customer or any User for violating this Section 5.1.
5.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its passwords and other log-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the or breach of its security and shall use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the Services, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
5.4. User Access. Customer is responsible and liable for: (a) Users’ use of the Services, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the Services through Customer’s account, whether authorized or unauthorized.
6. IP & FEEDBACK.
6.1. IP Rights to the Services and Customer’s Feedback. Vendor alone (and its licensors, where applicable) retains all right, title, and interest in and to the Services, the Feedback, the Derived Data and the Usage Data, including without limitation all software used to provide the Services, the Feedback, the Derived Data and the Usage Data and all graphics, user interfaces, logos, and trademarks reproduced through the Services. Customer recognizes that the Services, the Feedback, the Derived Data and the Usage Data, their components and the Feedback are protected by copyright and other laws and agrees not to copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.
6.2. License to Use the Services. Vendor hereby grants Customer during the Term, a limited, non-exclusive, non-transferable (other than pursuant to Section 12.4 of this Agreement), non-sublicensable license to use the Services in compliance with the terms of this Agreement.
6.3. IP Rights to Customer Data. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title, and interest in and to Customer Data.
6.4. License to Use Customer Data. Customer, on behalf of itself and its suppliers and licensors (as applicable) hereby grants Vendor during the Term a limited, non-exclusive, non-transferable (other than pursuant to Section 12.4 of this Agreement), non-sublicensable (other than to subcontractors bound by confidentiality obligations at least as restrictive as those set forth herein, for whose actions Vendor remains responsible) license to use, view, copy, reformat, distribute, display and analyze the Customer Data solely for purposes of providing and improving the Services.
6.5. Customer Marks; Marketing. Customer hereby grants to Vendor a worldwide, non-exclusive, non-transferable license to use and display all Marks provided by Customer to Vendor for inclusion in the Services solely for the purpose of Vendor's provision of the Services, as selected by Customer from time to time. Vendor is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion, and, to place Customer's name and logo on its website and marketing materials for this purpose, subject to compliance with any logo or branding guidelines provided by Customer.
7. CONFIDENTIAL INFORMATION.
7.1. “Confidential Information” refers to any confidential information shared by one Party with the other in connection with its business or clients and reasonably regarded as being of a confidential nature. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the receiving Party’s possession at the time of disclosure; (ii) is independently developed by the receiving Party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the receiving Party’s improper action or inaction; or (iv) is approved for release in writing by the disclosing Party. Customer is on notice that the Confidential Information may include Vendor’s valuable trade secrets.
7.2. Nondisclosure. Neither Party will disclose any Confidential Information to any third party other than to its employees or contractors in performance of this Agreement, without the express written consent of the other Party. Each Party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Each Party shall promptly notify the other Party of any misuse or misappropriation of Confidential Information that comes to its attention and take reasonable steps to contain and mitigate against the harm caused by such breach.
7.3. Use of Confidential Information. Either Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The receiving Party shall give the disclosing Party prompt notice of any such legal or governmental demand, to the extent allowable by law, and reasonably cooperate with the disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the disclosing Party’s expense.
7.4. Injunction. The Parties agree that breach of this Article 7 would cause the non-breaching Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the non-breaching Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.5. Termination & Return. Upon termination of this Agreement, and subject to any contrary obligations under applicable laws, the Parties shall return or destroy all copies of Confidential Information of the other Party in their possession.Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), the Parties are on notice and acknowledge that, notwithstanding the foregoing or any other provision of this Agreement:
(a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
8. REPRESENTATIONS & WARRANTIES.
8.1. From Vendor. Vendor represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) the performance of its obligations and/or exercise of its rights hereunder will not violate or conflict with (1) any agreements, contracts or other arrangements to which it is a Party, or (2) any applicable law and/or regulation, (c) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained, (d) it will provide the Services in a professional manner consistent with the levels of performance that would be reasonably expected of similar companies, (e) it will comply with all applicable laws and regulations, including, without limitation, the US Foreign Corrupt Practices Act, and all other laws and regulations prohibiting corruption and bribery, and (f) it will not, directly or indirectly make or give, offer or promise to make or give, or authorize the making or giving of any payment, gift, or other thing of value or advantage to any person or entity for the purpose of wrongfully influencing decisions or for any other purpose that is otherwise unlawful.
8.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) the performance of its obligations and/or exercise of its rights hereunder will not violate or conflict with (1) any agreements, contracts or other arrangements to which it is a Party, or (2) any applicable law and/or regulation, (c) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained, and (d) it will comply with all applicable laws and regulations, including, without limitation, the US Foreign Corrupt Practices Act, and all other laws and regulations prohibiting corruption and bribery, and (e) it will not, directly or indirectly make or give, offer or promise to make or give, or authorize the making or giving of any payment, gift, or other thing of value or advantage to any person or entity for the purpose of wrongfully influencing decisions or for any other purpose that is otherwise unlawful.
8.3. Warranty Disclaimers. Except to the extent set forth in the Agreement, CUSTOMER ACCEPTS THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
9.1. Customer shall defend, indemnify, and hold harmless Vendor and the Vendor Associates against any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Services, including without limitation: (a) claims by Users, Customer’s employees, or Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by the Customer Marks, written material, images, logos or other content provided by Customer to Vendor through the Services, including without limitation by Customer Data; and (d) claims that use of the Services through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Notwithstanding anything to the contrary, the foregoing obligations do not apply to the extent such claims are caused by Vendor’s gross negligence, fraud or intentional misconduct. Customer’s obligations set forth in this Section 9.1 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
9.2. Vendor shall defend, indemnify, and hold harmless Customer against third party claim, suit, or proceeding arising out of or related to any infringement or violation of intellectual property right by Vendor’s Services provided Vendor is promptly notified of any and all threats, claims, proceedings related thereto and given reasonable assistance and sole control over the defense and settlement thereof. Vendor’s obligations set forth in this Section 9.2 include retention and payment of reasonable attorney fees and payment of court costs, as well as settlement at Vendor’s expense and payment of judgments. The foregoing obligations do not apply (i) to the extent such claims are caused by Customer’s gross negligence, fraud or intentional misconduct, or (ii) with respect to portions or components of the Services (a) not created by or on behalf of Vendor, (b) resulting in whole or in part from Vendor’s compliance with Customer's specifications, if such claim, suit or proceeding would have been avoided without such compliance with Customer specifications, (c) that are modified by Customer or any third party not under the control of Vendor, where the alleged infringement arises out of such modification, (d) combined with other products, processes or materials not approved in writing by Vendor (including, without limitation, Customer Data) where the alleged infringement would not have arisen by the Services standing alone, (e) where Customer continues allegedly infringing activity after being notified in writing thereof or after being informed in writing of modifications that would have avoided the alleged infringement, and/or (f) where Customer's use of the Services is in violation of this Agreement.
10. LIMITATION OF LIABILITY.
10.1. Dollar Cap. VENDOR’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED U.S. DOLLARS ONE HUNDRED THOUSAND ($100,000).
10.2. Excluded Damages. Except with regard to breaches of Article 7 (Confidential Information), IN NO EVENT WILL VENDOR BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 10 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11. Term & Termination.
11.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for twenty four (24) months (the “Initial Term”). Thereafter, the Term will renew for successive twelve (12) month periods, unless either Party refuses such renewal by written notice thirty (30) or more days before the renewal date.
11.2. Termination for Cause. Either Party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in thirty (30) days unless the other Party first cures such breach, or effective immediately if the breach is not subject to cure.
11.3. Effects of Termination. Upon termination of this Agreement:
(a) Customer shall cease all use of the Services, and delete, destroy, or return all copies of the Documentation in its possession or control;
(b) all rights and licenses granted hereunder to Customer will immediately cease; and
(c) all rights and licenses granted hereunder to Vendor will immediately cease.
11.4. Survival. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
11.5. Migration Services. At the request of the Customer at least fifteen (15) days prior to the effective date of the termination or expiration of this Agreement, Vendor shall use commercially reasonable efforts to provide Customer with assistance in migrating Customer Data to the Customer’s or another service provider’s system. Customer will continue to have the right to use the Services and Vendor will continue to provide the Services during the Transition Period; provided that Customer shall pay fees therefor during such Transition Period at the same rate that Customer was obligated to pay for the Services immediately prior to beginning the Transition Period, plus any fees related to additional transitional work, such as data migration, invoiced at the greater of Vendor's prevailing hourly rates or the hourly rate listed in the SOW.
12.1. Independent Contractors. The Parties are independent contractors and shall so represent themselves in all regards. Neither Party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile, twenty-four (24) business hours after being sent, if transmitted by e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), or postage prepaid, to the respective addresses of the Parties set forth below or such other addresses as the respective Parties may designate by like notice from time to time. If to Vendor:
95 Federal St. Unit 3A
San Francisco, CA 94107
If to Customer, such Customer’s email and address as indicated in an SOW.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing Party’s reasonable control.
12.4. Assignment & Successors. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party; provided, however, that a Party may, upon prior written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement to any of its affiliates or to an entity with or into which it is merged or consolidated or to which it sells its stock or other equity interests or all or substantially all of its assets or to the surviving entity of any similar transaction. Any other assignment or transfer in violation of this Agreement will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction. This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Francisco, California. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.8. Conflicts. In the event of any conflict between this Agreement and the SOW or any agreement related hereto, the terms of this Agreement will govern unless such conflicting terms are explicitly superseded in the SOW or such other agreement.
12.9. Technology Export. Customer shall not: (a) permit any third party to access or use the Services in violation of any U.S. law or regulation; or (b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Services in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.10.Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither Party has relied upon any such prior or contemporaneous communications.
12.11.Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each Party.