Software as a Service (SaaS) Terms of Service
The following Software as a Service ("SaaS") Terms of Service (the "Terms") govern your use of the Services (as defined below) offered by Foxpass, Inc., a Delaware corporation with a principal place of business at 1182 Market Street, Suite 216, San Francisco, CA 94102 ("Supplier") as of the date hereof ("Effective Date").
BY USING THE SERVICES, YOU ("CUSTOMER", AND TOGETHER WITH SUPPLIER, THE "PARTIES" AND EACH A "PARTY") CONSENT TO BE LEGALLY BOUND BY ALL THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE THE TERMS "CUSTOMER", "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.
In consideration of the mutual promises and agreements set forth in these Terms, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed by the parties, the parties agree as follows:
1.1 "Affiliate" means any entity, now or hereafter existing that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, "control" means direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise. An entity shall be considered an "Affiliate" only so long as that entity meets the foregoing definition.
1.2 "Customer Data" means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or any User and received and analyzed by the Supplier Service.
1.3 "Customer System" means Customer's internal servers and other equipment and software used in the conduct of Customer's business.
1.4 "Documentation" means the online user instructions and help files made available by Supplier for use with the Supplier Service, as may be updated from time to time by Supplier.
1.5 "Intellectual Property Rights" means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.6 "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.7 "Open Source Software" means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
1.8 "Order Form" means the ordering documents for Services purchased from Supplier that are executed hereunder by the parties from time to time, including modifications, supplements and addend thereto. Order Forms shall be deemed incorporated herein. Affiliates of Customer may purchase licenses to access and use the Supplier Service subject to these Terms by executing Order Forms hereunder, and by executing an Order Form, that Affiliate of Customer shall be bound by these Terms as if it were an original party hereto.
1.9 "Services" means the Supplier Service and Support Services.
1.10 "Subscription Term" means the subscription period for Customer's use of the Supplier Service set forth in an Order Form.
1.11 "Supplier Service" means the SaaS based software called Foxpass that provides cloud-hosted LDAP, RADIUS, and SSH-key hosting services to enable employee access to wireless networks, VPNs, and servers that is provided by Supplier to Customer pursuant to these Terms.
1.12 "Support Services" means the support and maintenance services offered by Supplier and any upgraded or premium support and maintenance services, if made available by Supplier and purchased by Customer separately pursuant to an Order Form.
1.13 "Third Party Offerings" means certain software or services delivered or performed by third parties that are required for the operation of the Supplier Service, or other online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the Supplier Service.
1.14 "Users" means Customer's or its Affiliates’ employees, consultants, contractors, agents and third parties with whom Customer may transact business and (a) for whom access to the Supplier Services during the Subscription Term have been purchased pursuant to an Order Form, (b) who are authorized by Customer or its Affiliates to access and use the Supplier Service, and (c) who have been supplied user identifications and passwords for such purpose by Customer (or by Supplier at Customer's request).
ORDERS; LICENSES; AND RESTRICTIONS
2.1 Orders. Subject to the terms and conditions contained in these Terms, Customer may purchase subscriptions for Users to access and use the Supplier Services pursuant to Order Forms. Unless otherwise specified in the applicable Order Form, (a) Supplier Services are purchased as User subscriptions and may be accessed by no more than the number of Users specified in the applicable Order Form, (b) an unlimited number of additional User subscriptions may be added at any time during the applicable Subscription Term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the Subscription Term in effect at the time the additional User subscriptions are added and invoiced separately from the then-existing User subscriptions for the remainder of such Subscription Term, and (c) the added User subscriptions shall terminate on the same date as the pre-existing User subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Supplier Services. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Supplier regarding any future functionality or features. If there is any inconsistency between an Order Form and these Terms, the Order Form controls.
2.2 Access and Use License. Subject to Customer's compliance with the terms and conditions contained in these Terms, Supplier hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable (a) right for its Users to access and use the Supplier Service in accordance with the Documentation, and (b) license to download any software offered by Supplier and required for access and use of the Supplier Service (the "Downloadable Software"), in each case solely for Customer's internal business purposes and not for the benefit of any other person or entity. Customer's use of the Supplier Service may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified either in the Order Form or in the Documentation. All references to Supplier Services shall include Downloadable Software.
2.3 Restrictions. Customer shall not, directly or indirectly (nor shall the Customer permit any user or third party to): (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Supplier Service; (b) modify, translate, or create derivative works based on any element of the Supplier Service or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Supplier Service; (d) use the Supplier Service for time-sharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Users; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation of the Supplier Service without Supplier's prior written consent; (g) use the Supplier Service for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Supplier Service; (i) introduce any Open Source Software into the Supplier Service; or (j) attempt to gain unauthorized access to the Supplier Service or their related systems or networks.
2.4 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Supplier.
THIRD PARTY OFFERINGS
3.1 Use of Third Party Offerings. Supplier or third parties may from time to time make Third Party Offerings available to Customer. Any acquisition by Customer of any such Third Party Offerings, and any exchange of data between Customer and any provider of a Third Party Offering, is solely between Customer and the applicable provider of the Third Party Offering. Supplier does not warrant or support any Third Party Offering, whether or not they are designated by Supplier as “certified” or otherwise, except as specified in an Order Form. If Customer installs or enables any Third Party Offering for use with Supplier Services, Customer acknowledges that Supplier may allow providers of that Third Party Offering to access Customer Data as required for the interoperation and support of such Third Party Offering with the Supplier Services. Supplier shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by the providers of Third Party Offerings.
3.2 Integration with Third Party Offerings. The Supplier Services may contain features designed to interoperate with Third Party Offerings (e.g., Google, Facebook or Twitter applications). To use such features, Customer may be required to obtain access to such Third Party Offering from their providers. If the provider of any Third Party Offering ceases to make the Third Party Offering available for interoperation with the corresponding Supplier Service features on reasonable terms, Supplier may cease providing such features without entitling Customer to any refund, credit, or other compensation.
3.3 Third Party Hosting. Supplier may use the services of one or more third parties to deliver any part of the Services. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.
4.1 Passwords. Customer shall be responsible for creating user logins and passwords for each of its Users authorized to access and use the Application. Customer shall be responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Customer is solely responsible for any and all access and use of the Application that occurs using logins and passwords Supplier issues to Customer. Customer shall restrict its Users from sharing passwords. Customer agrees to immediately notify Supplier of any unauthorized use of any account or login and password issued to Customer's Users, or any other breach of security known to Customer. Supplier shall have no liability for any loss or damage arising from Customer's failure to comply with the terms set forth in this section.
4.2 No Circumvention of Security. Neither Customer nor any of Customer's Affiliates nor any User may circumvent or otherwise interfere with any user authentication or security of the Supplier Service. Customer will immediately notify Supplier of any breach, or attempted breach, of security known to Customer.
4.3 Security. Supplier will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by Supplier, the use of, or connection to, the internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Supplier Services and Customer Data. Supplier cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the internet or otherwise or that any such security precautions will be adequate or sufficient.
5.1 Customer System. Customer is responsible for (a) obtaining, deploying and maintaining the Customer System, and all computer hardware, software, modems, routers and other communications equipment necessary for Customer, its Affiliates and their respective Users to access and use the Supplier Services via the internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Supplier Services via the internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms or an Order Form, Supplier shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.
5.2 Accuracy of Customer's Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Supplier to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Supplier of any changes in Customer's legal business name, address, email address and phone number. Customer agrees to accept emails from Supplier at the e-mail addresses specified by its Users for login purposes. In addition, Customer agrees that Supplier may rely and act on all information and instructions provided to Supplier by Users from the above-specified e-mail address.
5.3 Temporary Suspension. Supplier may temporarily suspend Customer's, its Affiliates’ or their respective Users’ access to the Supplier Services in the event that (a) Customer's, its Affiliates’ or any of their Users’ traffic increases beyond (i) such Customer's, Affiliates’ or User's daily average traffic or (ii) the amount agreed upon by the parties, or (b) Customer, any of its Affiliates or any of their Users are engaged in, or Supplier in good faith suspects Customer, its Affiliates’ or any of their Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Supplier will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Supplier's exercise of the suspension rights herein shall not be conditioned upon Customer's receipt of any notification.
5.4 Evaluations. At Supplier's request, Customer will provide Supplier with written or oral report(s) of the results of Customer's evaluation of the Supplier Services, including, but not limited to, a report of any errors that Customer has discovered in the Supplier Services.
AVAILABILITY / Support Services
6.1 Support. For paying customers, Supplier will provide email technical support only from Monday though Friday, holidays excluded, from 9 am to 5 pm Pacific Time. All support requests must be submitted by email to email@example.com. Supplier will use commercially reasonable efforts to respond within one (2) business day to support requests.
Fees and payments
7.1 Fees. Customer agrees to pay all fees specified in all Order Forms and SOWs using one of the payment methods Supplier supports.
7.2 Invoices and Payment. All fees for Supplier Services will be invoiced in advance and in accordance with the applicable Order Form. Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Supplier and notifying Supplier of any changes to such information.
7.3 Overdue Charges. If Supplier does not receive fees by the due date, then at Supplier's 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.
7.4 Suspension of Service. If any amounts owed by Customer for the Services are thirty (30) or more days overdue, Supplier may, without limiting Supplier's other rights and remedies, suspend Customer's and its Users’ access to the Services until such amounts are paid in full.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER
8.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
8.2 Disclaimer. THE WARRANTIES SET FORTH IN THIS SECTION 8, THE SUPPLIER SERVICES, SUPPORT SERVICES, THIRD-PARTY OFFERINGS AND ANY NON-GA SERVICES (THE "SERVICES") ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER'S USE OF THE SERVICES IS AT ITS OWN RISK. SUPPLIER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; SUPPLIER HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING WARRANTIES (i) THAT THE SERVICES ARE ERROR FREE, (ii) CONCERNING THE SPEED AT WHICH THE SERVICES WILL PERFORM, (iii) CONCERNING THE OPERATION OF THE INTERNET OR THE EQUIPMENT AND TELECOMMUNICATIONS LINES USED BY CUSTOMER TO ACCESS THE INTERNET AND THE SERVICES, AND (iv) REGARDING THE EXISTENCE OR EFFECTS OF OPEN SOURCE SOFTWARE CONTAINED IN THE SERVICES (NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, ALL SUCH OPEN SOURCE SOFTWARE IS BEING MADE AVAILABLE "AS-IS" AND SUPPLIER IS MAKING NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING SUCH OPEN SOURCE SOFTWARE).
(a) General. Supplier will defend, indemnify and hold Customer harmless from any third party claim or suit brought against Customer to the extent such suit or action is based on an claim that the Supplier Services, in the form provided by Supplier, infringes the Intellectual Property Rights of such third party; provided that (a) Customer notifies Supplier in writing within thirty (30) days of the claim, (b) Supplier has sole control of the defense and all related settlement negotiations, and (c) Customer provides Supplier with the assistance, information and authority necessary to perform Supplier's obligations under this section. Supplier will have no liability for a claim of infringement based on Customer's use of a superseded or altered release of Supplier Services if the infringement would have been avoided by the use of a current unaltered release of the Supplier Services, which Supplier provided or made available to the Customer. The foregoing indemnification obligations of Supplier shall not be applicable in the event the infringement or misappropriation claim in question arises from or is attributable to: (i) compliance with any designs, specifications or instructions Customer hereafter specifically requests Supplier to comply with, (ii) the modification by Customer or any third party of the Supplier Services, (iii) the use of the Supplier Services in combination with other products no provided by Supplier, and (iv) use of the Supplier Services other than in accordance with the Documentation.
(b) Mitigation. If the Supplier Services is alleged to be so infringing, Supplier shall have the right, at its option and expense, to (a) modify the Supplier Services to be noninfringing while maintaining substantially equivalent functionality, or (b) obtain for Customer a license to continue using the Supplier Services. If Supplier determines it is not commercially reasonable to perform either of the foregoing options, Supplier may terminate the license for the infringing Supplier Services and refund any pre-paid or unused portion of the license fees.
(c) Sole Remedy. THIS SECTION STATES SUPPLIER'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR ANY THIRD PARTY INFRINGEMENT CLAIM TO THE EXTENT PERMITTED BY LAW.
10.1 Confidential Information. "Confidential Information" means any and all non-public technical and non-technical information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") in any form or medium, whether oral, written, graphical or electronic, pursuant to these Terms, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party's business; and (d) the terms of these Terms and any Order Form. Confidential Information of Supplier shall include the Supplier Service. Confidential Information also includes all summaries and abstracts of Confidential Information.
10.2 Non-Disclosure. Each party acknowledges that in the course of the performance of these Terms, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party's Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party's obligations or to exercise the Receiving Party's rights under these Terms. Each party agrees to secure and protect the other party's Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party's own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, Affiliates or other agents who are permitted access to the other party's Confidential Information to satisfy its obligations under this section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of these Terms and who are subject to confidentiality obligations at least as stringent as the obligations set forth in these Terms.
10.3 Exceptions to Confidential Information. The obligations set forth in Section 10.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party's Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of these Terms or any obligation of confidentiality by the Receiving Party. Nothing in these Terms shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency's order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
10.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
11.1 Supplier Services. As between Supplier and Customer, all right, title and interest in the Supplier Services and any other Supplier materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Supplier, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Supplier or Supplier's licensors and providers, as applicable.
11.2 Supplier Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Supplier, whether solely or jointly, including without limitation all Deliverables ("Supplier Developments") and all Intellectual Property Rights therein, shall be the sole and exclusive property of Supplier. Customer agrees that, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Supplier Developments is not, by operation of law or otherwise, vested in Supplier, Customer hereby assigns and agrees to assign to Supplier all right, title and interest in and to such Supplier Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.
LIMITATION OF LIABILITY
12.1 No Consequential Damages. OTHER THAN WITH RESPECT TO INDEMNIFICATION, SUPPLIER shall NOT be liable to CUSTOMER for any special, indirect, incidental, consequential, punitive or exemplary damages, including, but not limited to, lost profits, even if CUSTOMER has knowledge of the possibility of such damages.
12.2 Limits on Liability. UNDER NO CIRCUMSTANCES SHALL SUPPLIER’S LIABILITY TO CUSTOMERS (AND CUSTOMER’S PERSONNEL AND AFFILIATES) IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO SUPPLIER, UNDER THE APPLICABLE CONTRACT, DURING THE PRIOR 12 MONTHS.
TERM AND TERMINATION
13.1 Term. The term of these Terms commence on the Activation Date and continue until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms. Except as otherwise specified in the applicable Order Form, Subscription Terms for all Users shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then current Subscription Term. The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Supplier has given Customer written notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter; provided however that no such pricing increase shall occur until after expiration of the then current Subscription Term.
13.2 Termination for Cause. A party may terminate these Terms (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree.
13.3 Survival. Sections 1, 2.2, 9, 10, 11, 12, 13 and 14 shall survive any termination or expiration of these Terms.
14.1 Notices. Supplier may give notice to Customer by means of a general notice through the Supplier Service interface, electronic mail to Customer's e-mail address on record with Supplier, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer's address on record with Supplier. Customer may give notice to Supplier by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Foxpass, 161 Hartford Street, San Francisco CA 94114, Attention: Legal. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
14.2 Governing Law. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings. The seat, or legal place of arbitration shall be San Francisco, California, United States. Notwithstanding the foregoing, Supplier has the right to pursue equitable relief in the state and federal courts located in San Francisco, California, and Customer agrees to the exclusive jurisdiction and venue of such courts.
14.3 Publicity. Supplier has the right to reference and use Customer's name and trademarks and disclose the nature of the Services provided hereunder in each case in Supplier business development and marketing efforts, including without limitation Supplier's web site.
14.4 No Solicitation of Employees. Customer agrees that, so long as the Subscription Term remains in effect, and for a period of one (1) year following the last Subscription Term hereunder to terminate or expire, it will not directly solicit for employment the employees of Supplier without Supplier's prior written consent; provided, however, that the foregoing prohibition shall not preclude the hiring by Customer of any individual who responds to a general solicitation or advertisement, whether in print or electronic form, only job postings and social networking sites.
14.5 Waiver. No term or provision of these Terms shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
14.6 Severability. If any provision of these Terms is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
14.7 Assignment. Neither party may assign these Terms, any Order Forms or any SOWs to any third party, without the prior written consent of the other party. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, these Terms will bind and benefit the parties and their successors and permitted assigns. With the exception of Affiliates of Customer who have executed Order Forms under these Terms, there are no third-party beneficiaries to these Terms. Notwithstanding anything to the contrary, either party may assign their rights and obligations to an entity that purchases all, or substantially all, of their outstanding equity.
14.8 Relationship of the Parties. Supplier is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
14.9 Attorneys’ Fees. In any action to enforce these Terms, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
14.10 Force Majeure. Neither party shall be liable for any failure or delay in performance under these Terms due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of these Terms); or any other event beyond the reasonable control of the party whose performance is to be excused.