Terms of Service

These Terms of Service (these “Terms”) were last updated January 4, 2021 and are incorporated by reference into each contract or statement of work that refer to these Terms as if they were fully restated therein. ProviDyn, Inc. (“Service Provider”) may modify these Terms from time by time by modifying them as they appear on this web page. Any such change will be binding on the Client thirty (30) days after the change is published unless a written agreement between the Client and the Service Provider provides otherwise.

  1. SERVICES.

1.1. Services Availability. Service Provider will provide the Services during the Term as provided in an applicable SOW that is signed by the Parties and incorporates these Terms. Each such instance of a signed SOW and these Terms is collectively referred to herein as an “Agreement”.

1.2. Service Control. Except as otherwise expressly provided in this Agreement, as between the Parties:

(a) Service Provider has and will retain sole control over the operation, provision, maintenance and management of the Services, including the: (i) Service Provider systems used to provide the Services at all locations where any of the Services are performed; (ii) selection, deployment, modification and replacement of the Service Provider Software; and (iii) performance of support Services and maintenance, upgrades, corrections and repairs of Service Provider Software; and

(b) Client has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Services by any Person by or through the Client Systems or any other means controlled by Client or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Service Provider; (ii) results obtained from any use of the Services or Documentation; and (iii) conclusions, decisions or actions based on such use.

1.3. Relationship Managers. Each Party shall, throughout the Term, maintain within its organization a relationship manager to serve as such Party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each relationship manager shall be responsible for providing all day-to-day consents and approvals on behalf of such Party under this Agreement. Each Party shall ensure its relationship manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Each Party shall use commercially reasonable efforts to maintain the same relationship manager in place throughout the Term. If either Party’s relationship manager ceases to be employed by such Party or such Party otherwise wishes to replace its relationship manager, such Party shall promptly name a new relationship manager by written notice to the other Party.

1.4. Services Changes. Service Provider may make any changes to the Services and Documentation that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Service Provider’s services to its customers, (ii) the competitive strength of or market for Service Provider’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Throughout the Term and any renewal term, Service Provider may increase the price of a service if: (a) the price increase is mutually agreed upon by both parties; or (b) the price of the service has not increased within the preceding 12 months and (c) the price increase is less than or equal to the prior 12 month percentage change of the Consumer Price Index for the Atlanta, GA metropolitan area as published by the United States Department of Labor Bureau of Labor Statistics.

1.5. Suspension or Termination of Services. Service Provider may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate or otherwise deny Client’s, any Authorized User’s or any other person’s access to or use of all or any part of the Services or Documentation, without incurring any resulting obligation or liability, if: (a) this Agreement expires or is terminated; or (b) Service Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Service Provider to do so; or (c) Service Provider believes, in its reasonable discretion, that Client or any Authorized User: (i) has failed to comply with any material term of this Agreement; (ii) has accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; or (iii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; and Client fails to cure such breach within thirty (30) days of receipt of notice thereof. This Section does not limit any of Service Provider’s other rights or remedies whatsoever, including any rights or remedies at law, in equity or under this Agreement.

  1. DEFINITIONS. As used in this Agreement, and in addition to any other terms defined in this Agreement, the following terms will have the following meanings:

2.1. “Authorized User” means an employee, contractor or agent of Client who is authorized by Client to access and use the Service Provider Software, to whom a password and Software user ID has been issued by Client and whose access to the Service Provider Software has not been terminated, suspended or surrendered.

2.2. “Client Materials” means any (i) software, graphics, audio, video, diagrams, photographs, equipment, materials, documentation and other Client-owned content that is furnished to Service Provider by Client or its designated third-party provider in connection with this Agreement, (ii) any modifications, improvements to, or derivative works of the foregoing, and (iii) any Intellectual Property Rights therein.

2.3. “Confidential Information” means all information, material and data of the Discloser including that which constitutes a trade secret under applicable law and: (a) is labeled or designated in writing as confidential or proprietary, (b) the Recipient is advised is proprietary or confidential, or (c) in view of the nature of such information and/or the circumstances of its disclosure, the Recipient knows or reasonably should know is confidential or proprietary. Confidential Information includes, without limitation, Client Data (as defined below), the terms and conditions of this Agreement and the SOW, and all non-public information relating to the Discloser’s business plans, marketing plans, customers, technology, employee and organizational information, product designs, product plans and financial information.

2.4. “Deliverables” means, as applicable, the Services provided to Client by Service Provider and any tangible work product related thereto that are provided to Client by Service Provider for its use hereunder, in each case expressly excluding Client Data, Client Materials and/or any Client Confidential Information.

2.5. Disclosure” refers to the Party disclosing Confidential Information hereunder, whether such Party is Service Provider or Client and whether such disclosure is directly from Discloser or through Discloser’s employees or agents.

2.6. “Documentation” means the user documentation and any other operating, training, and reference manuals, including such documentation presented in electronic form, relating to the use of the Service Provider software made available by Service Provider to Client in connection with the Services.

2.7. “Intellectual Property Rights” means any and all rights to exclude, as they exist from time to time in any jurisdiction, under patent law, copyright law, moral rights law, trade-secret law, trademark law, unfair competition law, and other similar laws, and all other similar rights.

2.8. “Service Provider Software” means the software developed and utilized by Service Provider in the provision of Services pursuant to this Agreement, which may include third party-owned software, in whatever form and on whatever media rendered, and specifically including any interfaces Service Provider may implement from time to time to facilitate the interoperability of the Services with third party software, services and networks.

2.9. “Service Provider Server” means any one or more servers managed by Service Provider or a Service Provider subcontractor in any location and used for hosting the Service Provider Software and data.

2.10. “Party” and “Parties” means Service Provider and/or Client, individually or collectively as applicable.

2.11. “Permitted Interruption” means any interruption or disruption of the Service caused by (a) scheduled downtime or maintenance. Service Provider will use commercially reasonable efforts to limit to routine maintenance of the Services. Service Provider will give Customer commercially reasonable prior notice of all scheduled downtime outages of the Services; (b) Service downtime or degradation due to a Force Majeure Event; (c) Service downtime or degradation resulting from an Excluded Cause; and (d) any suspension or termination of Client’s or any Authorized Users’ access to or use of the Services as permitted by this Agreement.

2.12. “Recipient” refers to the Party receiving any Confidential Information hereunder from or through the other Party, whether such Party is Service Provider or Client and whether such disclosure is received directly or through Recipient’s contractors or agents.

2.13. “Services” means the services to be provided by Service Provider under this Agreement as set forth in an applicable SOW.

2.14. “Business Hours” means Monday through Friday 7:30 AM-6:00 PM Eastern Time excluding Service Provider defined holidays.

2.15. “Service Area” means the area within a fifty (50) mile radius circle centered on Service Provider’s headquarters facility.

2.16. “Third-Party Software” means software developed by any party other than Service Provider and utilized by Service Provider in the provision of Services.

2.17. “Trade Secrets” means information of a Party, without regard to form, including, but not limited to, scientific, technical or nontechnical data, source code, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a design, a process, a procedure, an improvement, invention, plan, product development efforts, product plans, financial data, or financial plans which are not commonly known by or available to the public and which are used by and known only to such Party, and to their employees and independent contractors to whom it has been confided to in order to achieve its intended use, whether existing in oral or tangible form and which information (i) 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 (ii) is the subject of efforts by such Party that are reasonable under the circumstances to maintain its secrecy. In addition to and not in lieu of the foregoing, “Trade Secrets” also includes all other property, things or information which would be considered trade secrets under the Georgia Trade Secrets Act of 1990 as amended from time to time (O.C.G.A. § 10-1-760 et seq.).

  1. FEES AND PAYMENT.

The fees payable by Client to Service Provider for Services shall be those set forth in each applicable SOW. Client shall pay all applicable sales, use, service, value-added, consumption or other such taxes associated with Client’s receipt of the Services. Service Provider will pay all taxes on its income and all taxes and insurance associated with its personnel. Client further agrees to reimburse Service Provider for all travel and lodging expenses, including air/rail fares, hotel, car rental/fuel expenses/mileage (as applicable), meals, and other similar expenses, reasonably incurred in providing Services that require travel to a Client location. For the avoidance of doubt, such expenses shall not include Service Provider’s general corporate overhead, salaries, rent, or any other non-specific indirect costs or expenses. Service Provider will invoice Client for amounts due hereunder as set forth in the SOW and Client will pay each invoice within thirty (30) days of its receipt. Upon notice by Service Provider, a late charge of one percent (1%) per month will be added to the balance of each invoice remaining unpaid after the due date, excluding any amounts disputed in good faith by Client. Disputes raised by Client for any fees paid must be reported to Service Provider within 60 days of the disputed invoice. If Service Provider retains an attorney to enforce its rights under this Agreement, Client will pay Service Provider its reasonable attorneys’ fees and out of pocket costs and expenses in connection with such efforts and any related litigation.

  1. TERM AND TERMINATION

4.1. This Agreement will commence on the Effective Date and will remain in effect until the first anniversary of the Effective Date (such period being the “Initial Term”), unless sooner terminated as provided in this Agreement. Upon the expiration of the Initial Term and any Renewal Term (as defined below), this Agreement will automatically renew for additional renewal terms of one (1) year each (each a “Renewal Term”), unless either Party gives written notice to the other of non-renewal at least sixty (60) days before the expiration of the Initial Term or the applicable Renewal Term. (The Initial Term and any Renewal Terms are collectively referred to as the “Term.”) The Parties acknowledge that certain SOWs may expire or be terminated from time to time in accordance with their terms, and that no such expiration or termination shall affect the effectiveness of this Agreement so long as any SOW remains in effect. Either Party may terminate this Agreement at any time if: (a) either Party attempts to assign this Agreement or delegate any obligation hereunder without the other Party’s consent, except as otherwise permitted hereunder; or (b) any assignment is made of the other Party’s business for the benefit of creditors, or if a petition in bankruptcy is filed by or against the other Party, or if a receiver or similar officer is appointed to take charge of all or part of the other Party’s property, or if the other Party is adjudicated a bankrupt. Either Party may terminate this Agreement upon written notice to the other if the other Party is in breach of any material term or condition of this Agreement and the breaching Party fails to cure such breach within thirty (30) days of receipt of notice thereof (ten (10) days in the case of a Client breach for non-payment of an invoice). During any Renewal Term, both parties shall have the right to terminate this SOW without penalty for any reason provided a minimum of ninety (90) days’ notice prior to the effective date of termination and Client’s account is in and remains in good standing until the effective date of termination.

4.2. Upon termination or expiration of this Agreement, Service Provider shall cease performing all Services, shall promptly invoice Client, and Client shall pay Service Provider for all Services rendered and expenses incurred prior to the effective date of such termination or expiration. Within thirty (30) days after the effective date of termination of this Agreement for any reason, Client will (i) pay Service Provider for all amounts owed pursuant to the terminated SOWs and all other amounts owed by Client to Service Provider under this Agreement, including, but not limited to, all license fees owed by Client as of the effective date of termination, any third party service agreements entered into by Service Provider on behalf of Client, and all fees related to deprovisioning software or services or transitioning services to a third-party; and (ii) remove all copies of any Service Provider Software licensed pursuant to the terminated SOWs or this Agreement (as applicable) from all computer systems and storage media operated by Client or on Client’s behalf. Within forty-five (45) days after the effective date of termination of this Agreement, each Party shall return to the other all of the other Party’s property, including, but not limited to, Service Provider Software, any software media, the Documentation, the Client Materials and Data, and all Confidential Information of such other Party. Backup copies of Client Data on systems owned and controlled by Service Provider will be destroyed within forty-five (45) days after the effective date of termination of this Agreement. Upon termination of this Agreement for any reason, all rights and licenses granted by either Party hereunder to the other Party will immediately cease.

4.3. Termination or expiration of this Agreement or any SOW will not affect the provisions of this Agreement regarding any treatment of Confidential Information, use of trademarks or trade names, provisions relating to the payment of amounts due, indemnification obligations, or those provisions limiting or disclaiming liability, which provisions will survive termination or expiration of this Agreement.

  1. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.

5.1. This Section 5 expressly supersedes any prior confidentiality agreement or non-disclosure agreement between the Parties unless otherwise expressly agreed in writing.

5.2. Each Party, as Recipient, shall not use, other than in connection with the provision or receipt of the Services, or disclose to anyone, other than officers, employees or representatives of the Recipient with a need to know for purposes of this Agreement and who are subject to confidentiality obligations consistent with the terms of this Agreement (“Representatives”), any Confidential Information disclosed to the Recipient by or on behalf of the Discloser. The Recipient shall safeguard disclosure of such Confidential Information to the same extent as with the Recipient’s own Confidential Information, but shall at least use reasonable care. Upon termination of expiration of this Agreement, or earlier upon request of the Discloser, the Recipient shall promptly return to the Discloser or destroy the Discloser’s Confidential Information in its possession or under its control.

5.3. The confidentiality obligations of this Section 5 shall not apply to any such information that: (a) is or becomes publicly known without any fault of or participation by the Recipient or its Representatives, (b) was in Recipient’s possession prior to the time it was received from Discloser or came into Recipient’s possession thereafter, in each case lawfully obtained from a source other than Discloser or its Representatives and not subject to any obligation of confidentiality or restriction on use, or (c) is independently developed by the Recipient without reference to the Discloser’s Confidential Information. It shall not be a violation of this Section 5 for Recipient to disclose any Confidential Information to the extent it is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Recipient shall, unless prohibited by law, notify the Discloser of the requirement of disclosure before making such disclosure and shall comply with any protective order or other limitation on disclosure obtained by the Discloser.

5.4. Any use or disclosure of the Discloser’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Discloser irreparable damage for which remedies other than injunctive relief may be inadequate, and both Parties agree that the Discloser may request injunctive or other equitable relief seeking to restrain such use or disclosure.

5.5. The provisions of this Section 5 will survive the termination or expiration of this Agreement for any reason for a period of five years, except that with respect to any Confidential Information that constitutes a Trade Secret, these provisions will survive for so long as such information retains its Trade Secret status.

  1. LIMITED WARRANTY

6.1. Service Provider warrants that it will: (a) perform the Services in conformity with the SOW, and (b) comply with all applicable laws.

6.2. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN SECTION 6.1, SERVICE PROVIDER MAKES NO WARRANTIES WHATSOEVER AND PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, SERVICE PROVIDER HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, COURSE OF DEALING, COURSE OF PERFORMANCE, AVAILABILITY, USAGE OF TRADE, ACCURACY OF INFORMATIONAL CONTENT AND SYSTEM INTEGRATION. SERVICE PROVIDER DOES NOT WARRANT THE OPERATION OF THE SERVICES TO BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICES WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE OR HARDWARE PRODUCTS OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED. FURTHERMORE, SERVICE PROVIDER DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE SERVICES OR THE RESULTS OBTAINED THEREFROM OR THAT THE SERVICES WILL SATISFY CLIENT’S REQUIREMENTS. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES IS AT CLIENT’S RISK. SERVICE PROVIDER DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR ANY THIRD-PARTY PRODUCTS OR SERVICES.

6.3. Service Provider will have no responsibility or liability for any failure of the Services or any failure to perform resulting from an event or occurrence beyond its reasonable control, including, without limitation, (a) the flow of data to or from Service Provider’s network and other portions of the Internet which depend on the performance of Internet and telephone services not provided or controlled by Service Provider; (b) a service interruption caused by a security threat until such time as the security threat has been eliminated; and (c) any emergency maintenance initiated by Service Provider in order to mitigate or prevent any ongoing or imminent breach of security or network integrity (with any of the foregoing being a “Force Majeure Event”).

  1. AUDIT RIGHTS

Service Provider may audit and review Client’s use of the Service Provider Services solely for the purposes of validating that such use is in accordance with this Agreement and the Documentation. Client will reimburse Service Provider for all costs and expenses of the audit if Service Provider discovers through such audit that any fees or charges are due in connection with any of the Services. Such audit shall be conducted during Client’s normal business hours and shall not unreasonably interfere with Client’s business operations.

  1. SUBCONTRACTORS.

In performing its obligations under this Agreement, Service Provider may engage subcontractors as it determines may be necessary. Service Provider shall remain responsible for the performance of such contractors in accordance with its obligations hereunder. Use of subcontractors shall be in accordance with Service Provider’s published subcontractor policy, a copy of which shall be provided upon Client request.

  1. TRADEMARKS AND TRADE NAMES

. Except as expressly set forth in this Agreement, no license is granted to either Party to use the other Party’s trade names and trademarks. All permitted use of such marks by either Party will inure to the benefit of the owner of such marks, use of which will be subject to specifications controlled by the owner.

  1. DATA OWNERSHIP; DATA SECURITY

10.1. As between Service Provider and Client, Client owns all right, title and interest in and to any data provided to Service Provider by Client in connection with this Agreement (“Client Data”). The locations of Service Provider owned or operated systems which may contain Client data is described in Service Provider’s Privacy Policy, publicly available via Service Provider’s website. Service Provider’s use of such Client Data shall not create in Service Provider’s favor any right, title or interest therein. Service Provider recognizes the proprietary and confidential nature of the Client Data and the irreparable harm that would occur from unauthorized disclosure. Service Provider shall exercise commercially reasonable efforts to seek to prevent or mitigate threats or hazards to the security or integrity of Client Data and unauthorized access to or use of such Client Data. Client is responsible for providing cyber-liability and any other applicable insurance coverage, enrollment in ongoing cyber-security training and anti-phishing campaign, and adherence to recommended industry best practices.

10.2. In the event that Service Provider is notified of, or gains actual knowledge of facts reasonably leading it to believe there is a likelihood of, any actual or attempted access, use, misuse, acquisition, destruction, loss, misappropriation, compromise, release or disclosure to or of any Client Data in the possession, custody or control of, Service Provider (a “Security Breach”), Service Provider shall, promptly after Service Provider learns of the Security Breach: (a) notify Client of the Security Breach; (b) investigate such Security Breach and provide reasonable assistance to Client; and (c) take action (as determined in Service Provider’s reasonable discretion) to promptly remediate the Security Breach at Client expense. Unless required by applicable law, Service Provider shall not (x) make any public announcements relating to such Security Breach without first consulting with, and obtaining the prior written consent of, Client or (y) notify any individual whose personally-identifiable and non-public information may have been affected by a Security Breach or any third party other than law enforcement of any Security Breach without first consulting with, and obtaining the prior written consent of, Client.

10.3. In the event that Client is notified of, or gains actual knowledge of facts reasonably leading it to believe there is a likelihood of, any actual or suspected access, use, misuse, acquisition, destruction, loss, misappropriation, compromise, release or disclosure (or attempted access, use, misuse, acquisition, destruction, loss, misappropriation, compromise, release or disclosure) to or of any Client Data on Client’s network (a “Client Security Breach”), Client shall, promptly after Client learns of the Client Security Breach: (a) notify Service Provider; (b) investigate such Security Breach; and (c) take action (as determined in Client’s reasonable discretion) to promptly remediate the Client Security Breach.

  1. INDEMNIFICATION.

11.1. By Service Provider. Service Provider will indemnify, defend, and hold harmless Client and its affiliates and their respective officers, directors, employees, agents and other representatives (collectively, the “Indemnitees”) against all liabilities, losses, damages, liability, claims, costs and expenses, interest, awards, judgments and penalties, including reasonable attorneys’ and consultants’ fees or other expenses (collectively “Losses”) arising from any claims, actions, or proceedings, arising out of any claim that (a) (i) the Services, and/or Service Provider’s provision thereof to Client and/or Client’s use thereof, or (ii) the Deliverables, and/or Service Provider’s provision thereof to Client infringes, violates or misappropriates any third party’s Intellectual Property Rights (a “Claim”), or (b) a third party has suffered injury to person or damage to tangible personal property caused by the negligence or willful misconduct of Service Provider or any of its officers, directors, employees, or agents.

11.2. Remedies for IP Infringement. If Service Provider determines that its provision of the Services or Deliverables is the subject of a Claim, Service Provider will have the option, in its sole discretion and at its sole cost and expense, to (y) modify the Services or Deliverables to eliminate the source of the Claim, or (z) cease to provide the applicable Services or Deliverables and refund any prepaid Fees in respect of the applicable Services or Deliverables. With respect to Claims arising pursuant to Section 11.1(a), Service Provider’s execution and completion of the foregoing remedies will be Service Provider’s sole liability, and Client’s exclusive remedy, for any such Claim. In the event Service Provider implements option (y) above, and if the replacements and/or modifications made in connection therewith materially diminish the value of the Services or Deliverables provided to Client by Service Provider, as reasonably determined by Client in its sole discretion, then Client may terminate this Agreement on fifteen (15) days’ notice and Service Provider will promptly refund any prepaid Fees paid by Client in respect thereof.

11.3. Exceptions. Service Provider will have no indemnity obligation for claims of infringement resulting or alleged to result from: (a) any combination, operation, or use of the Service Provider Software or Services by Client with any programs or equipment not supplied by Service Provider or not specified in writing for such purpose (collectively, the “Combined Items”) if such infringement would have been avoided absent the combination, operation, or use of such Combined Items, (b) any unauthorized modification of the Service Provider Software by Client, or (c) Client’s failure to implement any replacement or modification of the Service Provider Software provided by Service Provider.

11.4. By Client. Client will indemnify, defend, and hold harmless Service Provider, and its affiliates, officers, directors, employees agents, and other representatives against all liabilities, losses, damages, liability, claims, costs and expenses, interest, awards, judgments and penalties, including reasonable attorneys’ and consultants’ fees or other expenses (collectively “Losses”), arising out of any claims that the combination by Client of any Client software, content, data, marks or other materials provided by Client or utilized by Client with the Services infringes or violates any third party’s valid patent, copyright or trade secret right under the any applicable laws. If Service Provider retains an attorney to enforce its rights under this Agreement, Client will pay Service Provider its reasonable attorneys’ fees and out of pocket costs and expenses in connection with such efforts and any related litigation.

11.5. Indemnification Procedure. If any Party is entitled to indemnification under this Article 9, the Party seeking such indemnification (the “Indemnified Party”) must (i) promptly notify the Party obligated to provide indemnification (the “Indemnitor” of the existence of the Claim (together with copies of any applicable documents or other relevant information); provided that any delay or failure to so notify the Indemnitor shall not relieve the Indemnitor from its responsibilities hereunder, except to the extent the Indemnitor is actually prejudiced by any such failure or delay; (ii) provide Indemnitor with reasonable assistance and cooperation in connection with the defense of the Claim, in each case at the Indemnitor’s sole expense, and (iii) allow Indemnitor to control the Claim and any related settlement negotiations; provided that the Indemnified Party shall have the right to participate in such Claim or settlement negotiations with counsel at its selection and at its sole expense. The Indemnitor may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the Indemnified Party or diminishes the Indemnified Party’s rights without first obtaining the Indemnified Party’s express written consent.

  1. LIMITATIONS OF LIABILITY.

12.1. No Consequential or Like Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE ANY DELIVERABLE OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICES, EVEN IF SUCH PARTY HAS BEEN NOTIFIED IN ADVANCE OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHER THEORY OF LAW OR EQUITY.

12.2. Maximum Liability. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED THE FEES RECEIVED BY SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE PERIOD OF NINETY (90) DAYS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.

12.3. Effect of Termination. Within thirty (30) days after the effective date of termination of this Agreement for any reason, Client will (i) pay Service Provider for all amounts owed pursuant to the terminated Agreement up to the effective date of such termination and all other amounts owed by Client to Service Provider under this Agreement, including, but not limited to, all license fees owed by Client as of the effective date of termination; and (ii) remove all copies of any Service Provider Software licensed pursuant to the terminated Agreement from all computer systems and storage media operated by Client or on Client’s behalf. Within thirty (30) days after the effective date of termination of this Agreement, Service Provider shall refund all Fees prepaid by Client for the applicable Services after the effective date of such termination. Each Party shall return to the other all of the other Party’s property, including, but not limited to, Service Provider Software, any software media, the Documentation, the Client Materials and all copies thereof, and all Confidential Information of such other Party. Backup copies of Client Data on systems owned and controlled by Service Provider will be destroyed within forty-five (45) days after the effective date of termination of this Agreement. Upon termination of this Agreement for any reason, all rights and licenses granted by either Party hereunder to the other Party will immediately cease.

12.4. Survival. Termination of this Agreement will not affect the provisions of this Agreement regarding any treatment of Confidential Information, use of trademarks and/or tradenames, provisions relating to the payments of amounts due, indemnification obligations, treatment of data ownership and/or provisions limiting or disclaiming liability, which provisions will survive termination.

  1. EXPORT CONTROLS.

Client agrees that it will not import, export, or re-export directly or indirectly, any commodity, or any information pertaining thereto, to any country in violation of the laws and regulations of the U.S. or any applicable jurisdiction. Specifically, Client shall not disclose, send, allow for download or otherwise export or re-export Service Provider’s Confidential Information, Deliverables, Documentation or other technical data into or to (i) a national or resident of Cuba, Iran, Libya, Sudan, North Korea, Syria, Serbia (except Kosovo) or any other country with respect to which the United States has instituted an embargo, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated National or the United States Commerce Department’s Table of Denial Orders. Client agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any such country or identified on any such list.

  1. MARKETING.

During the Term, Service Provider may refer to Client as a user of the Deliverables, including captioned quotations in product literature or advertisements, articles, press releases, marketing literature, presentations, on Service Provider’s websites, and the like, and reasonable use as a reference for potential new users; provided, that Service Provider shall obtain Client’s written consent prior to making any such reference. Client may withdraw its approval of any reference at any time and Service Provider shall immediately cease such reference.

  1. FORCE MAJEURE.

Neither Service Provider nor Client will be liable to the other for failure to perform any of its obligations under this Agreement, other than the payment of fees, to the extent such failure is caused by an event outside its reasonable control, including but not limited to, an act of nature, war, or natural disaster (each, a “Force Majeure Event”). The affected Party shall as soon as commercially practicable notify the other Party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. If the performance by the affected Party of its obligations with regard to this Agreement is prevented, hindered or delayed by the Force Majeure Event for more than 5 consecutive days, then the other Party may, in its sole discretion, immediately terminate this Agreement by giving notice of termination to the affected Party. Upon any such termination, (i) the terminating Party shall have no further liability other than such liabilities as have already accrued up to the date of occurrence of such Force Majeure Event and (ii) Service Provider will promptly refund all Fees paid by Client for the remainder of the Term.

  1. EMPLOYEE RECRUITING.

Client and Service Provider acknowledge that Service Provider’s and Client’s employees are critical to the servicing of their respective customers. Therefore, Client and Service Provider each agree that, during the Term and for a period of three (3) years after the Term, not to, directly or indirectly, on its own behalf or on behalf of any other person or entity, solicit or induce, or attempt to solicit or induce any person who was an employee of the other Party with whom such Party had material contact during the last year of his or her employment with such other Party, to terminate his or her employment with such other Party. In the event of any breach of this Section, in light of the impossibility of proving actual damages, the breaching Party will pay the non breaching Party an amount equal to one hundred percent (100%) of the annual compensation of the employee solicited by the breaching Party, with Client and Service Provider agreeing that the foregoing liquidated damages are a reasonable approximation of the actual damages the non-breach Party would suffer in any such instance.

  1. GOVERNING LAW.

This Agreement will be exclusively construed, governed and enforced in all respects in accordance with the internal laws (excluding all conflict of law rules) of the State of Georgia. The United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to this Agreement. Each Party submits to the personal jurisdiction of the state and federal courts sitting in the Northern District of Georgia in connection with any dispute as to the existence, validity, enforceability, breach or termination of this Agreement, and each Party agrees to raise no objection to any such court as an inconvenient forum for the resolution of any such dispute.

  1. MISCELLANEOUS.

18.1. All notices required or permitted under this Agreement shall be in writing and shall be deemed given when delivered (a) by hand, (b) by registered or certified mail, postage prepaid, return receipt requested; (c) by a nationally recognized overnight courier service; or (d) by facsimile to the address (or facsimile telephone number) set forth in the signature section of this Agreement, as may be amended by the amending Party by written notice to the other Party. Notices shall be deemed received when delivered by hand, by mail or by courier, as evidenced by the service provider’s records, and by facsimile when received, as evidenced by fax confirmation.

18.2. Neither Party may assign, transfer, convey, delegate or encumber its duties and obligations hereunder, or any rights or interests hereunder to any third party without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement without the other Party’s consent to an entity that acquires all or substantially all of the assigning Party’s stock or assets to which this Agreement relates or to an entity in connection with a merger or reorganization of the assigning Party, provided that such entity agrees in writing to assume the assigning Party’s obligations hereunder, and provided further that in no case shall either Party assign this Agreement to a competitor of the other without such other Party’s prior written consent. A Party intending to assign this Agreement shall provide to the other Party written notice at least sixty (60) days prior to any proposed assignment, or if prohibited from doing so due to government or contractual confidentiality restrictions, written notice shall be provided promptly upon announcement of the transaction involving such assignment. Any attempted assignment without consent required by this Section shall be void and of no effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.

18.3. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all written or oral prior and contemporaneous agreements and understandings with respect thereto. No modification, extension, or waiver of or under this Agreement shall be valid unless made in writing and signed by an authorized representative of the Party sought to be charged therewith. No waiver shall constitute, or be construed as, a waiver of any other obligation or condition of this Agreement.

Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the Parties hereto or constitute or be deemed to constitute one Party as agent of the other, for any purpose whatsoever, and neither Party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose. For the avoidance of doubt, this Agreement is non-exclusive and Client is free to use other providers of services similar to the Services now or in the future.