Alexander Babbage » TruTrade and Other Services Agreement

THIS TRUTRADE SERVICES AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.

YOUR EXECUTION OF AN ORDER FORM THAT REFERENCES THIS AGREEMENT CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

This Agreement is effective between You and Babbage as of the Effective Date of the Order Form.

 

  1. DEFINITIONS. The terms defined below and throughout the Agreement shall have the following meanings:

Affiliate” means any entity, which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Agreement” means this document and its corresponding Order Form(s), any exhibits and/or addenda.

Babbage” means Alexander Babbage, Inc.

TruTrade Software” or “TruTrade Software Services” means the computer programs and the Trade Area Data developed, owned and licensed by Babbage and its licensors and available for Your use as TruTrade Software Services under this Agreement and a corresponding Order Form.

Consulting Services” means analysis and delivery of (i) the Intercept Study or Online Trade Study (as defined in the Order Form) and any other services described in the Order Form which may be part of or separate from the TruTrade Software Services; and/or (ii) the Trade Area Data for the Sites described in the Order Form which are organized, input and delivered to You in the TruTrade Software Services and Trade Area Report.

Services” means the TruTrade Software Services and Consulting Services that are ordered by You under an Order Form.

Fees” are the fees for the Services as described in an Order Form and are payable as stated in the Order Form and in this Agreement.

User” or “Users” means with respect to You, Your employees, consultants, contractors and agents who register and receive identifications and passwords to access and utilize the TruTrade Software Services  Your number of authorized Users is unlimited and You will determine in advance how many Site(s) a User has access to in the TruTrade Software Services.

Order Form” means the document for placing orders hereunder that are entered into between You and Babbage from time to time, including, addenda and supplements thereto which shall be incorporated by reference. The Order Form will state the Timetable for delivery of the Services, including without limitation of the Subscription Term, the Extended Subscription Term, the number of Site(s), the Period of Collection for the Trade Area Data, the Fees and such other information agreed upon by Us.  By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were You, the original party hereto. Order Forms shall be deemed incorporated herein by reference.

Period of Collection” means the time period for which the Trade Area Data relates.  Only the Period of Collection described on the Order Form will be contained in the Trade Area Data utilized in the TruTrade Software Services and the Trade Area Report.

Primary Site(s)” means each individual location (for example, physical destination, center, site, location and/or store) and described in an Order Form for which You have purchased Trade Area Data to be extracted, analyzed and reported on and incorporated into the TruTrade Software Services.

Alternate Site(s)” means each individual location for which You have requested Trade Area Data as it relates to one or more Primary Site(s). Each Alternate Site will be listed in the Order Form.

Site(s)” means collectively, the Primary Site(s) and the Alternate Site(s) described in the Order Form.

Subscription Term” means the time period for which You and Users will have access to the TruTrade Software Services as described in the Order Form.  Continuation of the Services upon expiration of the Subscription Term will require execution of a new Order Form and the payment of additional Fees.

Timetable” refers to the time period after acceptance of the Agreement by You and payment of applicable Fees that Babbage will perform the Services.

Trade Area Data” means all mobile, social and/or other electronic data or information for the Site(s) expressly described in the Order Form for the Period for Collection as well as the Subscription Term as detailed on the Order Form.  Trade Area Data is owned by Babbage and its licensors.

Trade Area Report” means a tangible report (by pdf or print) which is a comprehensive compilation of the Trade Area Data for the Sites, and any other Services expressly provided under the Order Form, as collected, analyzed and reported upon by Babbage as described in the Order Form.

You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

Us” means Babbage and You and/or Your Affiliates.

 

  1. SERVICES

2.1. Provision of Services. Babbage will deliver the Services to You pursuant to this Agreement and the relevant Order Form on the Timetable and during the Subscription Term, subject to the payment of the Fees.

2.2. Consulting Services.  Upon completion of the Consulting Services, You will receive the Trade Area Report delivered as described in the Order Form and Trade Area Data will be incorporated into the TruTrade Software.

2.3 Additional or New Services.  Babbage may advise You from time to time of new functionality for the TruTrade Software, as well as Consulting Services, products, modules & applications and You may request additional or new services from Babbage (collectively, “New Services”).  All New Services shall be subject to completion and execution of a new Order Form and may incur additional Fees.

 

  1. USE OF THE TRUTRADE SOFTWARE SERVICES

3.1. Babbage Responsibilities. Babbage will: (i) provide basic support for the TruTrade Software Services to You at no additional charge; (ii) use commercially reasonable efforts to make the TruTrade Software Services available seven (7) days a week, 24 hours per day and technical support for the Services available 8 AM EST – 6 PM EST 5 days a week, except for: (a) planned downtime (of which Babbage shall use reasonable commercial efforts to provide You with advance notice thereof), or (b) any unavailability caused by circumstances beyond Babbage’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Babbage employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the TruTrade Software Services only in accordance with applicable laws and government regulations.

3.2. Your Responsibilities. You shall (i) be responsible for each of Users’ compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the TruTrade Software, and notify Babbage promptly of any such unauthorized access or use, and (iii) use the TruTrade Software Services only in accordance with the Babbage Terms of Use, Privacy Policy, this Agreement and applicable laws and government regulations. You shall not (a) make the TruTrade Software Services available to anyone other than Your Users which are registered in the TruTrade System, (b) sell, resell, rent or lease the TruTrade Software Services, in whole or part, including without limitation, the Trade Area Data, (c) interfere with or disrupt the integrity or performance of the TruTrade Software Services or third-party data contained therein, or (d) attempt to gain unauthorized access to the TruTrade Software Services or their related systems or networks.  To the extent necessary to provide the Services under an Order Form, You represent and warrant to Babbage that you have the authority to grant Babbage and its representatives access to the Primary and/or Alternate Site(s) to conduct the Services and any content, data and information you provide to Babbage as part of the Agreement and Order Form you have all right, title and interest necessary to grant Babbage the right to use such Information for the purposes stated herein and in the Order Form.

3.3. Babbage Limitations. TruTrade Software Services may be subject to other limitations, such as, for example, limits on disk storage space, which is based upon your own operating system and related services.

 

  1. FEES AND PAYMENT FOR SERVICES

4.1. Fees. You shall pay all Fees specified in all Order Forms executed amongst Us. Except as otherwise specified herein or in an Order Form, (i) Fees are based on Services purchased and not actual usage, and (ii) payment obligations are non-cancelable and Fees paid are non-refundable.

4.2. Invoicing and Payment. All charges for Services shall be paid as stated in the Order Form. Babbage will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Babbage and notifying Babbage of any changes to such information.

4.3. Overdue Charges. If any charges are not received from You by the due date, then at Babbage discretion,  such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

4.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Babbage services is 30 or more days overdue, Babbage may, without limiting Babbage other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to You until such amounts are paid in full. Babbage will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 11.2 (Manner of Giving Notice), before suspending Services to You.

4.5. Payment Disputes. Babbage will not exercise Babbage rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

4.6.  Consulting Services and Expenses.  In the event You request Babbage to provide You with training or other consulting services outside the Services described on an Order Form, such Consulting Services shall be at Babbage then current services rates and shall be specified in an Order Form for such purposes (each, a “Services Order Form”).  You shall reimburse Babbage for all out-of-pocket (including travel and living) expenses incurred by Babbage in performing Babbage obligations to You under an Order Form and/or Services Order Form for which Babbage shall invoice You.  All payment obligations for such services and expenses shall be as stated in this Section 4.

4.7. Taxes. Unless otherwise stated, Babbage fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If Babbage has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Babbage with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Babbage are solely responsible for taxes assessable against it based on Babbage income, property and employees.

 

  1. PROPRIETARY RIGHTS

5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Babbage reserve all rights, title and interest in and to the Services and the Trade Area Data, including all related intellectual property rights. No rights are granted to You under this Agreement other than as expressly stated herein.  Any alterations of the Services performed for You, if any, shall be owned solely by Babbage.  You shall have all right, title and interest into and to the Final Trade Area Report, but not to the Trade Area Data contained within it.

5.2. Restrictions. You shall not (i) permit any third party to access the TruTrade Software Services except as permitted herein or in an Order Form, (ii) create derivate works based on the TruTrade Software Services except as authorized herein, (iii) copy, frame or mirror any part or content of the TruTrade Software Services, (iv) reverse engineer the TruTrade Software Services, or (v) access the TruTrade Software Services in order to (a) build a competitive product or service,  (b) copy any features, functions or graphics of the Services or attempt to enable the Services to interoperate with any third party products or services.

5.3. Suggestions. Babbage shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Sites, relating to the operation of the TruTrade Software Services.

5.6. Federal Government Provisions. Babbage provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Babbage to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

 

 

  1. CONFIDENTIALITY

6.1. Definition of Proprietary Information. As used herein, “Confidential Information” means all nonpublic proprietary information other than Trade Secrets (defined below), of value to its owner, as well as any data or information defined as a Trade Secret but which is determined by a court of competent jurisdiction to not be a trade secret under applicable law.   Babbage Confidential Information shall include the TruTrade Software Services and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms.  “Trade Secrets” means information, including the source code and human readable code of the TruTrade Software, business processes, product plans and designs and technology and technical information which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.  Collectively, hereinafter “Confidential Information” and “Trade Secrets” is referred to as “Proprietary Information.”  Proprietary Information, which is disclosed by a party hereunder to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  However, Proprietary Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of the Proprietary Information.

6.2. Protection of Proprietary Information. Each party agrees with the other  (i) to hold the Proprietary Information in the strictest confidence, (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information to any third party, subject to the provisions of subsection (iv) below, (iii) not to make use of the Proprietary Information other than for the permitted purposes under of this Agreement, and (iv) to disclose the Proprietary Information only to their respective representatives requiring such material for effective for performance of this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement.  Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.  Each party hereto shall institute internal operating procedures to assure limited access and use of Proprietary Information consistent with this Agreement, and shall exercise due care to monitor and ensure compliance with this Agreement.  The nondisclosure and confidentiality obligations set forth in this Section 6 shall survive termination of this Agreement for any reason and shall remain in effect with respect to Trade Secrets for as long as the owner of such information is entitled to protection thereof and with respect to Confidential Information for a period of five (5) years after termination hereof.

6.3. Compelled Disclosure. A party receiving Proprietary Information (“Receiving Party”) may disclose Proprietary Information of the disclosing party (“Disclosing Party”) if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Proprietary Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Proprietary Information.

 

  1. WARRANTIES AND DISCLAIMERS

7.1. Babbage Warranties. Babbage represents and warrants that it (i) has sufficient expertise, training and experience to satisfactorily accomplish the Consulting Services and the Consulting Services will be performed in a professional and workmanlike manner, and (ii) Babbage has validly entered into this Agreement and has the legal power to do so, and (ii) the TruTrade Software Services shall perform materially in accordance with Babbage Responsibilities stated in Section 3.1.

7.2. Your Warranties & Acknowledgements. You warrant that You have validly entered into this Agreement and have the legal power to do so.  You acknowledge and agree that the TruTrade Software Services do not and shall not contain any Proprietary Information (defined in Section 6 below) of You and the Trade Area Data will not be updated or changed during the Subscription Term after delivery of the Trade Area Report unless expressly provided for in the Order Form.

7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  THE TRUTRADE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “WHERE IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ON INFRINGEMENT.

 

  1. MUTUAL INDEMNIFICATION

8.1. Indemnification by Babbage. Babbage shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the TruTrade Software Services as delivered hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Babbage written notice of the Claim Against You; (b) give Babbage sole control of the defense and settlement of the Claim Against You (provided that Babbage may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Babbage all reasonable assistance, at Babbage expense. In the event of a Claim Against You, or if Babbage reasonably believe the TruTrade Software Services may infringe or misappropriate, Babbage may in Babbage discretion and at no cost to You (i) modify the TruTrade Software Services so that they no longer infringe or misappropriate, without breaching Babbage warranties under “Babbage Warranties” above, or (ii) obtain a license for Your continued use of the TruTrade Software Services in accordance with this Agreement and the Order Form.

8.2. Indemnification by You. You shall defend Babbage against any claim, demand, suit or proceeding made or brought against Babbage by a third party alleging (i) that Your use (or any of Your Users’ use) of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law; and (ii) for any loss, injury or death of a Babbage representative as a result of the performance of the Services on any Primary or Alternate Site as described in an Order Form (collectively, a “Claim Against Babbage”), and shall indemnify Babbage for any damages, attorney fees and costs as a result of, or for any amounts paid by Babbage under a court-approved settlement of, a Claim Against Babbage; provided that Babbage (a) promptly give You written notice of the Claim Against Babbage; (b) give You sole control of the defense and settlement of the Claim Against Babbage (provided that You may not settle any Claim Against Babbage unless the settlement unconditionally releases Babbage of all liability); and (c) provide to You all reasonable assistance, at Your expense.

8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

 

  1. LIMITATION OF LIABILITY

9.1. Limitation of Liability. EXCEPT WITH REGARD TO INDEMNIFICATION, BABBAGE’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL BABBAGE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR SERVICES). IN NO EVENT SHALL BABBAGE OR OUR LICENSORS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE TRADE AREA DATA OR THE USE OR OTHER DEALINGS IN AND RELATED TO THE TRADE AREA DATA.

9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL BABBAGE OR ITS LICENSORS HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT BABBAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

 

 

  1. TERM AND TERMINATION

10.1. Term of Agreement/Renewal Subscription Term. This Agreement commences on the date You accept it and continues until the Subscription Term stated in the Order Form has expired or been terminated. If a new Order Form and payment of additional Fees occurs at least thirty (30) days prior to the expiration of the Subscription Term, the Subscription Term will be renewed and will continue as provided in the new Order Form (each, an “Extended Subscription Term”).  Upon expiration none of Your Users shall have access or use of the TruTrade Software Services and all licenses thereto shall be terminated.

10.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such proceeding continues for more than one hundred twenty (120) days.

10.3. Surviving Provisions. Section 4 (Fees and Payment for Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.4 (Return of Your Data), 11 (Governing Law, Venue and Notice), and 12 (General Provisions) shall survive any termination or expiration of this Agreement.

 

  1. Governing Law, Venue and Notice.

11.1 Governing Law & Venue.  The laws of the State of Georgia shall govern this Agreement, without regard to conflicts of law.  Any action related to or arising out of this Agreement shall be venued solely in the Federal District Court for the District of the Northern District of Georgia and the parties irrevocably commit to the jurisdiction of said courts.

11.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).

 

  1. GENERAL PROVISIONS

12.1. Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

12.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Babbage employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify our Finance Department  (finance@alexanderbabbage.com)

12.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

12.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

12.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.7. Attorney Fees. The prevailing party in any dispute arising under or in connection with this Agreement shall be entitled to a reimbursement by the losing party of its costs and expenses in connection with such dispute, including without limitation, reasonable attorneys’ fees.

12.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct Alternate of the other party.

12.9. Force Majeure.  No party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that they are unable to perform and is directly or indirectly due to any cause or circumstance beyond the reasonable control of such party including, without limitation, acts of God, fire, flood, storms, earthquake, strike or other labor dispute. The party affected by an event of Force Majeure shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay.

12.10. Entire Agreement. This Agreement, including all exhibits, addenda and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any No terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

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