1. In this Agreement (including all Annexures hereto), unless otherwise stated or unless the context otherwise requires, the words and expressions beginning with capital letters (other than clause headings) shall have the meaning set out below:“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
    2. “Control” for purposes hereof, means direct or indirect ownership or control of more than 50% (Fifty Percent) of the voting interests of the subject entity.
    3. “Authorized Contractors” means independent contractors, licensors or subcontractors.
    4. “Customer Applications” means all software programs, including without limitation the analytical tool provided by the Service Provider, that Customer uses on the cloud platform comprising part of the Subscription Services. However, it being clarified that Subscription Services do not fall within the meaning of Customer Applications.
    5. “Customer Data” means all the data, records, files, images, graphics, audio, video, photographs, reports, forms and other content and material, in any format, that are submitted, stored, posted, displayed, transmitted or otherwise used with the Subscription Services.
    6. “Data Centre Region” refers to the geographic region in which the Customer Data is housed and hosted from.
    7. “Deliverable” means any work product, deliverables, programs, interfaces, modifications, configurations, reports, or documentation developed or delivered in the performance of Professional Services.
    8. “Documentation” means Forty4Hz’s product guides and other end user documentation for the Subscription Services made available to the Customer, and as may be updated by Forty4Hz from time to reflect the then-current Subscription Services.
    9. “Order” or “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Forty4Hz and Customer from time to time, including any addenda and supplements thereto.
    10. “Professional Services” means the consulting or data engineering/ integration services that Forty4Hz shall perform, but excluding Support Services.
    11. “Services” means the Subscription Services and Professional Services that Customer purchases.
    12. “Statement of Work” or “SOW” means a statement of work, if any, entered into and executed by the parties describing Professional Services to be provided by Forty4Hz to Customer.
    13. “Subscription Services” means the cloud platform made available by Forty4Hz to Customer, along with the utilisation of the software made available by Forty4Hz to Customer online via the applicable customer logins and/or associated Support Services.
    14. “Support Services” means the level of support services purchased by Customer.
    15. “Subscription Term” means the term of Subscription Services purchased by Customer which shall commence on the start date and continue for the subscription term specified therein and any renewals thereto.
    16. “Trial Services” means any Forty4Hz product, service or functionality including the Professional Services, that may be made available by Forty4Hz to Customer at no additional charge and for limited use only to try at Customer’s option or of the Services are availed by the Customer at without any subscription fee to Customer.
    17. Unless the context of this Agreement otherwise requires:
      1. Words defined in the body of the Agreement shall have the meaning ascribed to them therein;
      2. Words of any gender are deemed to include those of the other gender;
      3. Words using the singular or plural number also include the plural or singular number, respectively;
      4. The terms “hereof”, “herein”, “hereby”, “hereto” and derivative or similar words refer to this entire Agreement or specified Clauses of this Agreement, as the case may be;
      5. The term “Clause” refers to the specified clause of this Agreement and the term “Paragraph” refers to the specified paragraph of the Annexure;
      6. Heading and bold typeface are only for convenience and shall be ignored for the purposes of interpretation;
      7. Reference to any legislation or law or to any provision thereof shall include references to any such law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted, and any reference to statutory provision shall include any subordinate legislation made from time to time under that provision;
      8. Reference to the word “include”, “includes” and “including” shall be construed without limitation; and
      9. Any covenant under this Agreement by the Customer not to do any act or thing shall be deemed to include an obligation not to permit or suffer such act or thing to be done and to use its reasonable endeavors to prevent such act or thing being done by its employees, officers, servants, and authorized agents.
    1. Provision of Subscription Services
      1. Forty4Hz will make the Subscription Services available to Customer pursuant to this Agreement, the Documentation and the relevant Order Form, if any, during the Subscription Term, solely for Customer’s internal business purposes. Affiliates and its Authorized Contractors of Forty4Hz may perform certain aspects of the Services however Forty4Hz remain fully liable for same and responsible for ensuring that all the obligations of Forty4hz under this Agreement performed by its Affiliates and its Authorized Contractors are carried out in accordance with this Agreement.
      2. Customer’s Affiliates and its Authorized Contractors may access certain aspects of the Services and Customer Data hosted or provided through such Services provided that Customer remain fully liable for same and responsible for ensuring that any of Customer’s obligations under this Agreement performed by its Affiliates and its Authorized Contractors are carried out in accordance with this Agreement. Customer's use of the Subscription Services includes the right to access all functionality available in the Subscription Services during the Subscription Term.
      3. So long as Forty4Hz does not materially degrade the functionality, as described in the Documentation, of the Subscription Services during the applicable Subscription Term: (i) Forty4Hz may modify the systems and environment used to provide the Subscription Services to reflect changes in technology, industry practices and patterns of system use; and (ii) update the Documentation accordingly. Subsequent updates, upgrades, enhancements to the Subscription Services made generally available to all subscribing customers will be made available to Customer at no additional charge, but the purchase of Subscription Services is not contingent on the delivery of any future functionality or features. New features, functionality or enhancements to the Subscription Services may be marketed separately by Forty4Hz and may require the payment of additional fees. Forty4Hz will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee.
    2. Trial Services / Free Plan
    3. If Customer registers or accepts an invitation for Trial Services, including through Forty4Hz’s website, Forty4Hz will make such Trial Services available to Customer free of charge, until the end of the free trial period for which Customer registered to use the applicable Trial Services or until the Customer subscribes to the Services against payment. Trial Services are provided for evaluation purposes and not for production use. Customer shall have sole responsibility and Forty4Hz assumes no liability for any Customer Data that Customer may choose to upload for the utilization of the Trial Services. Trial Services may contain bugs, errors, and may be subject to additional terms. TRIAL SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. Forty4Hz may, in its sole discretion, discontinue Trial Services at any time.
    4. Service Levels
    5. Forty4Hz shall provision and maintain the subscription Services in accordance with the service level agreements available at “Forty4hz Service Level Agreement”, is incorporated herein by reference (“Service Level Agreements” or “SLAs”). SLA sets forth Customer’s sole remedies for availability or quality of the Subscription Services including any failure to meet any guarantee set forth in the SLA.
    1. Security and Internal Controls
    2. In accordance with Forty4Hz’s Data Security Policy incorporated herein by reference, Forty4Hz shall:
      1. maintain a security framework of policies, procedures, and controls that includes administrative, physical, and technical safeguards for protection of the security and integrity of the Subscription Services, and of the Customer Data contained within the Subscription Services, using the capabilities of currently available technologies and in accordance with prevailing industry practices and standards;
      2. access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement; and
      3. endeavor to perform periodic testing by independent third-party audit organizations,. In no event during the Subscription Term shall Forty4Hz materially diminish the protections provided by the controls set forth in Forty4Hz then-current Security Policy.
    3. Data Privacy
    4. In performing the Subscription Services, Forty4Hz will comply with the Forty4Hz’s Privacy Policy incorporated herein by reference The Privacy Policy is subject to change at Forty4Hz’s discretion; however, any policy changes will not result in a material reduction in the level of protection provided for Customer Data during the Subscription Term. [Where Customer’s use of the Subscription Services includes the processing of Customer Data by Forty4Hz that are subject to the General Data Protection Regulation (“GDPR”), such data processing by Forty4Hz as data processor complies with the requirements of the aforementioned regulation. Where Customer’s use of the Subscription Services includes the processing of California Consumer’s Personal Information by Forty4Hz that are subject to the California Consumer Protection Act of 2018, and its implementing regulations, as amended or superseded from time to time (“CCPA”), such data processing by Forty4Hz as a “service provider” complies with the requirements of the CCPA. Forty4Hz shall process personal data and personal information on behalf of and in accordance with Customer’s instructions consistent with this Agreement and as necessary to provide the Subscription Services and will reasonably cooperate with Customer in its efforts to respond to requests by data subjects and/or California Consumers to exercise their rights under the GDPR or CCPA and to otherwise comply with the GDPR or CCPA.
    5. Data Center Region
    6. Customer may select the Data Center Region from those available for the applicable Subscription Services. Forty4Hz will not move the selected Data Center Region and the Customer Data contained within such Data Center Region, without Customer’s written consent or unless required to comply with the law or requests of a governmental or regulatory body (including subpoenas or court orders). Customer consents to Forty4Hz’s storage of Customer Data in, and transfer of Customer Data into, the Data Center Region Customer selects.
    7. Compliance with Law
    8. Forty4Hz will comply with all laws applicable to the provision of the Subscription Services, including applicable security breach notification laws, but not including any laws applicable to the Customer’s industry that is not generally applicable to information technology services providers.
    1. Customer Covenants and Obligations
    2. Customer agrees and undertakes to: (a) access and use the Services in accordance with this Agreement, applicable laws and government regulations and Forty4Hz’s Acceptable Use Policy incorporated herein by reference; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Forty4Hz promptly of any such unauthorized access or use[; and (c) take commercially reasonable steps necessary to ensure the security and compliance of the Customer Applications].
    3. Customer Data
    4. Customer has and shall maintain all rights as are required to allow Forty4Hz to provide the Subscription Services to Customer as set forth in this Agreement, including without limitation to send the Customer Data to Forty4Hz pursuant to this Agreement and to allow Forty4Hz to access, use, and store Customer Data to provide the Subscription Services pursuant to this Agreement. Customer is responsible for its legal and regulatory compliance in its use of any Subscription Services and shall make Forty4Hz aware of any Customer Data processed, stored or transmitted through the Subscription Services for which regulations other than those set forth in the Data Security Policy apply. Subject to Clause 14.3 (Subscription Service Analyses), if, in the course of providing Subscription Services, Forty4Hz agrees in writing to process such Customer Data and Customer has subscribed to any applicable Subscription Services, Forty4Hz shall process it only as permitted under this Agreement and in compliance with data protection legislation to which Forty4Hz is subject as a service provider.
    5. Restrictions
    6. Customer shall no: (a) license, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise similarly exploit the Subscription Services; (b) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services; (c) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or any part thereof or otherwise attempt to discover any source code or modify the Subscription Services; or (d) disclose any benchmark or performance tests of the Subscription Services.
    1. Standard Professional Services
    2. A description of Forty4Hz’s standard Professional Services offerings, including training, and workshops, may be found in the Documentation.
    3. Change Orders
    4. Changes to an SOW or Order Form, if executed, will require, and shall become effective only when, fully documented written change order (each a “Change Order”) is executed by duly authorized representatives of the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule. Change Orders shall be deemed part of, and subject to, this Agreement.
    5. Designated Contact and Cooperation
    6. Customer will cooperate with Forty4Hz, will provide Forty4Hz with accurate and complete information, and provide Forty4Hz with such assistance and access as Forty4Hz may reasonably request, and will fulfill its responsibilities as set forth in this Agreement and the applicable SOW.
    1. Fees
    2. Customer shall pay all the agreed fees and any applicable additional fees if Customer exceeds the allotted capacity or other applicable limits. Except as otherwise specified herein or in an Order or SOW: (a) fees are payable in United States Dollars; (b) fees are based on Services purchased or its usage, (c) payment obligations are non-cancelable and fees paid are non-refundable, (d) all Services shall be deemed accepted upon delivery; and (e) the Subscription Services purchased cannot be decreased during the relevant Subscription Term. Customer shall reimburse Forty4Hz for out-of-pocket expenses incurred by Forty4Hz in connection with its performance of Services. Forty4Hz will provide Customer with reasonably detailed invoices for such expenses. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
    3. Invoicing and Payment
    4. Unless otherwise specified in an Order, fees for Subscription Services will be invoiced as per the subscription plan agreed by the Customer, fees for overages will be calculated and invoiced monthly in arrears. All fees and expenses for standard Professional Services as described in Clause 5.1 shall be invoiced upon completion, and all fees and expenses for non-standard Professional Services as described in 5.2 will be invoiced monthly in arrears on a time and materials basis. Except as otherwise agreed, Customer agrees to pay all invoiced amounts within thirty (30) days of invoice date. If Customer fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law: (a) Forty4Hz reserves the right to suspend the Subscription Services upon thirty (30) days’ notice, until such amounts are paid in full; and (b) Forty4Hz will have the right to charge interest at a rate equal to the lesser of one and one point five percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due.
    5. Taxes
    6. Fees for Services exclude all taxes including sales tax, value added tax, goods and services tax, all federal, state, local, and foreign taxes, levies, tariffs, duties, assessments and other indirect taxes and duties, withholdings etc., (collectively referred to as “Taxes”) imposed with respect to the sale, delivery, or use of any product or Services covered hereby. Unless Customer provides a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, Customer is responsible for payment of all Taxes arising from Forty4Hz’s provision of the Services hereunder, except any taxes assessed on Forty4Hz’s net income. If Forty4Hz is required to directly pay or collect Taxes related to Customer’s use or receipt of the Services hereunder, Customer agrees to promptly reimburse Forty4Hz for any amounts paid by Forty4Hz.
    1. Subscription Services
    2. Except for the rights expressly granted under this Agreement, Forty4Hz and its licensors retain all right, title and interest in and to the Subscription Services and Documentation, including all related intellectual property rights therein. Forty4Hz reserves all rights in and to the Subscription Services and Documentation not expressly granted to Customer under this Agreement. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary notices of Forty4Hz.
    3. Customer Data and Customer Applications
    4. As between Customer and Forty4Hz, Customer is and will remain the sole and exclusive owner of all right, title and interest to all Customer Data and Customer Applications, including any intellectual property rights therein. Customer hereby grants Forty4Hz, its Affiliates and applicable Authorized Contractors all necessary rights to host, use, process, store, display and transmit Customer Data and Customer Applications solely as necessary for Forty4Hz to provide the Services in accordance with this Agreement. Customer represents that it has, and warrants that it shall maintain, all rights as required to allow Forty4Hz to compile, use, store, and retain aggregated Customer Data, including without limitation in combination with other Forty4Hz customers’ data, for internal or marketing uses. Subject to the limited licenses granted herein, Forty4Hz acquires no right, title or interest from Customer or Customer licensors hereunder in or to Customer Data and Customer Applications, including any intellectual property rights therein. Customer reserves all rights in and to the Customer Data that are not expressly granted to Forty4Hz pursuant to this Agreement.
    5. Deliverables
    6. Excluding any property that constitutes Proprietary IP, any Deliverables shall be the sole property of Customer upon Customer’s payment in full of all associated Professional Services fees. Forty4Hz shall execute and, at Customer’s written request, require its personnel to execute any document that may be necessary or desirable to establish or perfect Customer’s rights to the ownership of such Deliverables. For purposes of this Agreement, “Proprietary IP” means any and all technology and information, methodologies, data, designs, ideas, concepts, know-how, techniques, user-interfaces, templates, documentation, software, hardware, modules, development tools and other tangible or intangible technical material or information that Forty4Hz possesses or owns prior to or post the commencement of Professional Services or which it develops independent of any activities governed by this Agreement, and any derivatives, modifications or enhancements made to any such property. Proprietary IP shall also include any enhancements, modifications or derivatives made by Forty4Hz to the Proprietary IP while performing Professional Services hereunder, and any software, modules, routines or algorithms which are developed by Forty4Hz during the term in providing the Professional Services to Customer, provided such software, modules, routines or algorithms have general application to work performed by Forty4Hz for its other customers and do not include any content that is specific to Customer or which, directly or indirectly, incorporate or disclose Customer’s Confidential Information.
    7. Proprietary IP License
    8. To the extent that Forty4Hz incorporates any Proprietary IP into any Deliverables, then Forty4Hz hereby grants Customer a limited, royalty-free, non-exclusive, non-transferable (subject to Clause 14.11), without right to sublicense, license to use such Proprietary IP delivered to Customer solely as necessary for and in conjunction with Customer's use of the Deliverables.
    1. Definition of Confidential Information
    2. “Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or reasonably should be understood to be confidential given the nature of information and the circumstances of disclosure. Without limiting the coverage of these confidentiality obligations, the parties acknowledge and agree that Confidential Information of each party shall include the terms and conditions of this Agreement (including the terms set forth in all Order Forms and/or SOWs, if any hereunder), related benchmark or similar test results, other technology and technical information, security information, security audit reports, and business and marketing plans, except that Forty4Hz may reference and use Customer’s name, logos and the nature of the Services provided hereunder in Forty4Hz’s business development and marketing efforts.
    3. Exceptions
    4. Confidential Information shall not include information that: (a) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party, (b) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party, (c) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to Disclosing Party, or (d) is independently developed by Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
    5. Protection of Confidential Information
    6. The Receiving Party shall use the same degree of care used to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and, except with Disclosing Party’s written consent, shall: (a) not use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of Disclosing Party to those of its and its Authorized Contractors, Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have a duty or obligation of confidentiality no less stringent than that set forth herein.
    7. Lawful Disclosure
    8. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process, provided that the Receiving Party: (a) provides prompt written notice to the extent legally permitted; (b) provides reasonable assistance, at Disclosing Party's cost, in the event the Disclosing Party wishes to oppose the disclosure; and (c) limits disclosure to that required by law, regulation or legal process.
    1. Forty4Hz Representations & Warranties
    2. Forty4Hz represents and warrants that: (a) Forty4Hz has the legal authority to enter into this Agreement; (b) the Subscription Services will materially conform with the relevant Documentation, (c) the functionality and security of the Subscription Services will not be materially decreased during a Subscription Term; and (d) Professional Services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards.
    3. Remedies
    4. For any failure of any Subscription Services or Professional Services, as applicable, to conform to their respective warranties, Forty4Hz’s liability and Customer’s sole and exclusive remedy shall be for Forty4Hz, in the case of a breach of the warranty set forth in Clause 9.1(b), (c), and/or (d), to use commercially reasonable efforts to correct such failure; or, in the case of a breach of the warranty set forth in Clause 9.1(d) to re-perform the affected Professional Services. If the foregoing remedies are not commercially practicable, Forty4Hz may, in its sole discretion, terminate the Services upon providing Customer with written notice thereof, and, as Customer’s sole and exclusive remedy, refund to Customer: (a) in the case of breach of the warranty set forth in Clause 9.1(b) or (c), any Subscription Services fees paid by Customer with respect to the unexpired portion of the current Subscription Term for the non-conforming Subscription Services; or (b) in the case of breach of the warranty set forth in Clause 9.1(d), any fees paid by Customer for the portion of Professional Services giving rise to the breach.
    5. Customer Representations & Warranties.
    6. Customer represents and warrants that: (a) it has the legal authority and capacity to enter into this Agreement, and (b) it will use the Services in accordance with the terms and conditions set forth in this Agreement and in compliance with all applicable laws, rules and regulations.
    7. Disclaimer
    1. Indemnification by Forty4Hz
    2. Forty4Hz shall indemnify, defend and hold Customer harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Subscription Services hereunder infringes or misappropriates the valid intellectual property rights of a third party (a “Claim Against Customer”); provided that Customer: (a) promptly gives Forty4Hz written notice of the Claim Against Customer; (b) gives Forty4Hz sole control of the defense and settlement of the Claim Against Customer (provided that Forty4Hz may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (c) provides to Forty4Hz all reasonable assistance, at Forty4Hz’s expense. In the event of a Claim Against Customer, or if Forty4Hz reasonably believes the Subscription Services may infringe or misappropriate, Forty4Hz may in Forty4Hz’s sole discretion and at no cost to Customer: (i) modify the Subscription Services so that they no longer infringe or misappropriate, without breaching Forty4Hz’s warranties hereunder, (ii) obtain a license for Customer’s continued use of Subscription Services in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for such Subscription Services and refund to Customer any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination. Notwithstanding the foregoing, Forty4Hz shall have no obligation to indemnify, defend, or hold Customer harmless from any Claim Against Customer to the extent it arises from: (A) Customer Data or Customer Applications, (B) use by Customer after notice by Forty4Hz to discontinue use of all or a portion of the Subscription Services, (C) use of Services by Customer in combination with equipment or software not supplied by Forty4Hz where the Service itself would not be infringing, (D) or Customer’s breach of this Agreement.
    3. Indemnification by Customer
    4. Customer shall indemnify, defend and hold Forty4Hz harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit or proceeding made or brought against Forty4Hz by a third party alleging that Customer Data or Customer Application violates applicable law or a third party’s rights.
    5. Exclusive Remedy
    6. This Clause 10 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 Clause.
    1. Limitation of Liability
    3. Exclusion of Consequential and Related Damages
    5. Other Limitations
    6. In no event shall Forty4Hz be liable to the Customer to the extent that the alleged infringement of a third party intellectual property is based on or connected with: (a) a modification of the Services or Documentation by anyone other than Forty4Hz; (b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Forty4Hz; or (c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Forty4Hz or any appropriate authority. Notwithstanding anything contained in this Agreement, Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by Customer, and for conclusions drawn from such use and Forty4Hz shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts, Customer Data provided to Forty4Hz by the Customer in connection with the utilization of the Services, or any actions taken by Forty4Hz at the Customer’s direction.
    1. Term of Agreement
    2. This Agreement commences on the Effective Date and continues until otherwise terminated, by written agreement of the parties, in accordance with Clause 12.3 or upon the expiration of the last Subscription Term or renewal thereof.
    3. Renewal of Subscription Services
    4. Except as otherwise specified in the applicable Order, the Subscription Services shall automatically renew for successive one-year periods, unless and until terminated by either party in accordance herewith or unless either party provides written notice of non-renewal to the other party at least sixty (60) days prior to the end of the then-current Subscription Term. Except to the extent as otherwise agreed at the time of execution of the Order Form, Forty4Hz shall be entitled to increase the pricing applicable to the renewal of any then-current Subscription Term by providing Customer with notice thereof, including by email, at least forty-five (45) days prior to the end of such term.
    5. Termination
    6. A party may terminate this Agreement for cause: (a) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such same thirty (30) day period; or (b) automatically if the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon termination of this Agreement for cause by Customer and upon Customer’s written request, Forty4Hz shall refund, on a pro rata basis, any fees paid thereunder that cover the remainder of the applicable Subscription Term after the effective date of termination. Upon termination of this Agreement for cause by Forty4Hz, all amounts owed by Customer thereunder shall become due and payable. In no event shall any termination relieve Customer of the obligation to pay all fees payable to Forty4Hz for the period prior to the effective date of termination.
    7. Data Portability and Deletion
    8. Upon a written request made by Customer within thirty (30) days of termination or expiration of the Subscription Services, Forty4Hz will make Customer Data and Customer Applications available to Customer for export or download as provided in the Documentation. At the end of such thirty (30) day period, Forty4Hz will be entitled to erase, delete, destroy and/or otherwise render inaccessible any Customer Data and Customer Applications, unless legally prohibited. Forty4Hz has no obligation to retain or to maintain the Customer Data or assist with its transition after expiry this seven (7) day period post expiration or termination of Subscripton Services.
    9. Survival
    10. This Clause, Clauses 7 (Proprietary Rights), 8 (Confidentiality), 9.4 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12.4 (Data Portability and Deletion), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) and any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination or expiration of this Agreement.
    1. Manner of Giving Notice
    2. Except as otherwise specified in this Agreement, all legal notices of default, breach or termination (“Legal Notices”) hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the fifth business day after being sent by certified mail return receipt requested, or (c) the first business day after sending by a generally recognized international guaranteed overnight delivery service. Each party shall send all Legal Notices to the other party at the address as per the records of the Parties submitted during the sing-up process, and on such updated details as such party may update such information from time to time, with, in the case of notices sent by Customer, a copy sent to the Forty4Hz Legal Department at the address first set forth above. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer on the applicable Order.
    3. Governing Law and Jurisdiction
    4. This Agreement and all matters arising out of or relating to this Agreement between the parties shall be governed and construed in accordance with the laws of the Delaware, excluding its conflicts of law rules.. Each party consents to the jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court. Notwithstanding the foregoing, the parties acknowledge that any unauthorized disclosure of Confidential Information or any actual or alleged infringement of such party’s or third party’s intellectual property rights might cause the other party to suffer irreparable harm for which damages would be an inadequate remedy and that, in such event, the aggrieved party may seek, in addition to any other available remedies, injunctive and other equitable relief in any state, federal, or national court of competent jurisdiction, without bond and without the necessity of showing actual monetary damages. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to the Agreement.
    5. Waiver of Jury Trial
    6. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
    1. Anti-Corruption
    2. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement. If a party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party.
    3. Federal Government End Use Provisions (only applicable for the U.S.)
    4. If the Services are being or have been acquired with U.S. Federal Government funds, or Customer is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Services, or any related documentation of any kind, including technical data, manuals or Forty4Hz Property is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995), as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the software and Services with only those rights set forth in this Agreement and any amendment hereto.
    5. Subscription Service Analyses
    6. Forty4Hz may: (a) compile statistical and other information related to the performance, operation and use of the Subscription Services, and (b) use, and share data from the Subscription Services environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses (a) and (b) above are collectively referred to as “Subscription Service Analyses”). Subscription Service Analyses will not incorporate any information, including Customer Data, in a form that could serve to identify Customer or an individual. Forty4Hz retains all intellectual property rights in Subscription Service Analyses.
    7. Relationship of the Parties
    8. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
    9. Non-Solicitation
    10. Customer agrees that during the term of this Agreement and for twelve (12) months thereafter, it will not recruit or otherwise solicit for employment any person employed by Forty4Hz who participated in the performance of Services. Nothing in this clause shall be construed to prohibit individual Forty4Hz employees from responding to public employment advertisements, postings or job fairs of Customer, provided such response is not prompted by Customer intentionally circumventing the restrictions of this Clause.
    11. No Third-Party Beneficiaries
    12. There are no third-party beneficiaries to this Agreement.
    13. Public Relations
    14. Customer agrees that Forty4Hz may identify Customer as an Forty4Hz customer in advertising, media relations, trade shows, the website, and other similar promotional activities, using Customer’s name and trademarks in accordance with Customer’s trademark guidelines. Customer shall also assist Forty4Hz in preparing a press release announcing Customer as a new Forty4Hz customer, with the view to publishing within sixty (60) days following the Effective Date and in preparing a case study for external use that details Customer’s use of the Services within six (6) months following the Effective Date. Forty4Hz shall not publish such press release or case study without Customer’s prior, written approval as to its contents.
    15. Waiver
    16. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
    17. Force Majeure
    18. Neither party shall be liable under this Agreement for delays or failures to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, natural catastrophe, government legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. The delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement upon written notice to the other party.
    19. Severability
    20. 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.
    21. Assignment
    22. Neither party may assign its rights and obligations hereunder, either in whole or in part, 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 competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    23. Entire Agreement
    24. This Agreement constitutes the entire agreement between the parties as it relates to the subject matter and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning or relating to the same. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions of this Agreement, the Documentation, any Order Form or SOW, if any executed amongst the Parties, the terms of such Order Form or SOW shall prevail.