The attached document describes the relationship between Bindle Systems, Inc., a Delaware corporation, (“Company”) and the customer identified below (“Customer”). The “Terms and Conditions” (the “Terms”) describes and sets forth the general legal terms governing the relationship between the parties (collectively, the “Agreement”). This Agreement, including the attached Terms, will become effective when this cover page is executed by authorized representatives of both parties (the “Effective Date”).
TERMS AND CONDITIONS
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1. “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Customer Users to access the Bindle Platform.
1.2. “Authorized Customer User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Bindle Platform pursuant to Customer’s rights under this Agreement.
1.3. “Bindle Mobile Application” means the Company’s proprietary mobile application available for download from the Google Play Store and Apple Store.
1.4. “Bindle Platform” means Company’s proprietary platform that allows the receipt, encrypted storage of COVID-19 test results and immunizations, and analysis of whether an End User’s COVID-19 test result and/or COVID-19 immunization status meets the Health Screening Policy.
1.5. “Bindle Solution” means, collectively, the Bindle Platform and the Bindle Mobile Application (including the Bindle Wallet).
1.6. “Bindle Wallet” means the encrypted storage functionality of the Bindle Platform that stores an End User’s End User Results in a manner that is segregated from the End User Results of other End Users.
1.7. “End User” means an individual user of the Bindle Mobile Application.
1.8. “Documentation” means the technical materials provided by Company to Customer in hard copy or electronic form describing the use and operation of the Bindle Solution.
1.9. “End User Data” means any data of End Users, including End User Results, that are provided to Customer via the Bindle Solution.
1.10. “End User Test” means a SARS-CoV-2 test taken by a particular End User.
1.11. “End User Results” means the results of an End User Test and/or an End User’s COVID-19 immunization status.
1.12. “Entry Pass” means a unique code generated by Company through processing a Bindle Wallet to allow Verifier to scan for Health Screening Policy compliance.
1.13. “Health Screening Policy ” means the criteria that must be met in order for an End User to pass a COVID-19 screening, as selected by Customer via functionality within the Bindle Platform.
1.14. “Intellectual Property Rights” means any and all now known or hereafter existing intellectual or proprietary rights, including (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights or other rights in confidential information (including, without limitation, know-how, technical data, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.15. “Professional Services” means professional services provided by Company to Customer as described as part of the Services.
1.16. “Self-Attestation” means an End User’s certification that she/he does not have COVID-19 symptoms, has had a negative COVID-19 diagnostic test and/or has received a COVID-19 vaccine.
1.17. “Services” means any services provided by Company to Customer under this Agreement as described in Section 2, or any mutually agreed-upon and executed amendment that references this Agreement, including, but not limited to, provision of access to the Bindle Platform and Professional Services.
1.18. “Waiver” means a liability waiver, in the form provided by Company, that Customer may, at its option, require End Users to sign in connection with entry into a venue.
2. PROVISION OF SERVICES.
2.1. Access. Subject to the terms and conditions of this Agreement, Company will provide Customer with access to the Bindle Platform during the Term (as defined in Section 10.1) solely for the purpose of determining whether End Users meet the Health Screening Policy in accordance with the limitations (if any) set forth in Exhibit A. On or as soon as reasonably practicable after the Effective Date, Company will provide to Customer the necessary Access Protocols to allow Customer and its Authorized Customer Users to access the Bindle Platform in connection therewith. Customer is responsible for any access to or use of the Bindle Platform attributable to Customer’s log-in credentials. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Bindle Platform, and notify Company promptly of any such unauthorized use known to Customer. Customer is responsible for the acts and omissions of each Authorized Customer User as if they were Customer’s acts and omissions. Customer acknowledges that the Bindle Platform will be provided by Company hereunder in the form of a software-as-a-service offering and that Customer is not entitled to receive any object code or source code for the Bindle Platform.
3. INTELLECTUAL PROPERTY
3.2. Restrictions. The Bindle Solution and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing or improvements or modifications thereto, are the exclusive property of Company and its suppliers. Customer will not, and will not permit any Authorized Customer User or other party to: (a) permit any third party who is not an Authorized Customer User to access the Bindle Platform or Documentation (collectively, “System Materials”); (b) modify, adapt, alter or translate any of the System Materials; (c) sublicense, lease, sell, resell, rent, loan, distribute or transfer any of the System Materials; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Bindle Platform; (e) interfere in any manner with the operation of the Bindle Platform or the hardware and network used to operate the Bindle Platform; (f) modify, copy or make derivative works based on any part of the System Materials; (g) access or use the Bindle Solution to build a similar or competitive product or service; (h) attempt to access the Bindle Platform through any unapproved interface; (i) otherwise use the Bindle Platform in any manner that exceeds the scope of use permitted under Section 2.1 (Access) or in a manner inconsistent with applicable law, the Documentation, or this Agreement; (j) introduce any virus, worm, Trojan horse or other malware into the Bindle Platform; or (k) remove, alter, or obscure any Intellectual Property Rights notices from any of the System Materials. All rights in and to the System Materials not expressly granted to Customer in this Agreement are reserved by Company and its suppliers.
3.3. Trademark License. Each party (“Trademark Licensor”) hereby grants to the other (“Trademark Licensee”) a non-exclusive, revocable license to use the trademarks, service marks, insignias, and logos specified by the licensor (the “Company Marks” or “Customer Marks,” as applicable) as follows: (a) each party will comply with the Trademark Licensor’s branding requirements and trademark usage guidelines; (b) each party may use the other party’s name or logo in tandem with descriptions of the nature of this partnership to potential End Users, provided that both parties have reasonably agreed on the content of such descriptions or marketing or promotional materials. Should the Trademark Licensor reasonably object to a particular use of its marks, the Trademark Licensor may revoke the Trademark Licensee’s rights thereto upon written notice and the Trademark Licensee shall cease using the Trademark Licensor’s marks in the manner found objectionable by the Trademark Licensor as soon as reasonably practical.
3.4. Feedback. Each party hereby grants the other party a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, or in the case of Company, incorporate into the Services, any suggestions, enhancement requests, recommendations or other feedback provided by such party.
4. END USER DATA
5. FEES AND EXPENSES; PAYMENTS.
5.1. Fees. In consideration for the rights granted to Customer and the Services performed by Company under this Agreement, Customer will pay to Company the fees set forth in Exhibit A (or any written amendments thereto). Except as otherwise provided therein, all fees are billed and due prior to commencement of work to cover the estimated costs (including overhead). Company will be reimbursed only for expenses that are expressly provided for in Exhibit A or that have been approved in advance in writing by Customer, provided Company has furnished such documentation for authorized expenses as Customer may reasonably request. Company reserves the right (in addition to any other rights or remedies Company may have) to suspend all Authorized Customer Users’ and Customer’s access to the Services if any fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
5.2. Taxes. The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the licenses granted to Customer hereunder (collectively, “Taxes”). Customer will make all payments of Fees to Company free and clear of, and without reduction for, any withholding Taxes; any such Taxes imposed on payments of Fees to Company will be Customer’s sole responsibility, and Customer will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as the Company may reasonably request, to establish that such Taxes have been paid. Notwithstanding the preceding sentence, if Company is required by applicable law to collect Taxes for which Customer is responsible under this Section, Company will invoice Customer for such Taxes, and Customer will pay Company that amount in accordance with Section 5.1 unless Customer provides Company with a valid tax exemption certificate recognized by the appropriate taxing authority.
5.3. Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
6. WARRANTIES AND DISCLAIMERS.
6.1. Limited Warranty. Company represents and warrants that it will perform its obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards and in compliance with all applicable laws, rules and regulations.
(a) THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 (LIMITED WARRANTY) IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6 (WARRANTIES AND DISCLAIMERS), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, DOCUMENTATION AND WAIVER ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY (INCLUDING WITHOUT LIMITATION, AS TO THE COMPLETENESS, TIMELINESS, ADEQUACY AND/OR RELIABILITY OF THE THE END USER RESULTS OR ANY OTHER INFORMATION OR DATA PROVIDED VIA THE BINDLE SOLUTION), MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE BINDLE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
(b) THE COMPANY DOES NOT PROVIDE ANY MEDICAL ADVICE OR ASSURANCES REGARDING HEALTH OR SAFETY. THE BINDLE PLATFORM AND OTHER INFORMATION PROVIDED BY COMPANY ARE FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL ADVICE, NOR INTENDED AS A FORM OF ANY DIAGNOSIS OR TREATMENT.
(c) COMPANY DOES NOT WARRANT THAT THE WAIVER IS ENFORCEABLE OR THAT THE WAIVER WILL SHIELD CUSTOMER FROM ALL LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) IT IS SOLELY RESPONSIBLE FOR DETERMINING THE ENFORCEABILITY OF THE WAIVER AND THE SUITABILITY OF THE WAIVER FOR CUSTOMER’S PURPOSES BY CONSULTING WITH CUSTOMER’S LEGAL COUNSEL, (II) THE WAIVER IS MADE AVAILABLE BY COMPANY TO CUSTOMER PURELY AS A CONVENIENCE TO CUSTOMER, AND (III) COMPANY IS NOT PROVIDING ANY LEGAL ADVICE TO CUSTOMER.
(d) IF CUSTOMER’S HEALTH SCREENING POLICY PERMIT SELF-ATTESTATION, CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT VERIFY THE ACCURACY OR VERACITY OF THE INFORMATION SET FORTH IN THE SELF-ATTESTATION AND AGREES THAT THE END USER MAKING SUCH SELF-ATTESTATION IS SOLELY RESPONSIBLE FOR THE ACCURACY AND VERACITY OF SUCH INFORMATION. FURTHER, CUSTOMER AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR THE CONSEQUENCES OF PERMITTING SELF-ATTESTATION IN THE Health Screening Policy.
7. LIMITATION OF LIABILITY
7.1. Types of Damages. SUBJECT TO SECTION 7.3 AND EXCEPT (A) FOR DAMAGES ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 8, (B) IN CONNECTION WITH THE INDEMNITY OBLIGATIONS IN SECTION 9, (C) WITH RESPECT TO CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, AND (D) FOR DAMAGES ARISING FROM CUSTOMER’S INFRINGEMENT OR MISAPPROPRIATION OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING BREACH OF ANY LICENSE OR USAGE RESTRICTIONS WITH RESPECT TO THE SYSTEM MATERIALS) (COLLECTIVELY, CLAUSES (A), (B), (C) AND (D) ARE THE “EXCEPTED LIABILITIES”), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, COMPANY SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY IN CONNECTION WITH THE HEALTH SCREENING POLICY PERMITTING SELF-ATTESTATION. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.2. Amount of Damages. SUBJECT TO SECTION 7.3 AND EXCEPT FOR THE EXCEPTED LIABILITIES, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO THE INITIAL CLAIM HEREUNDER. IN NO EVENT WILL COMPANY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
7.3. Exception. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE A PARTY’S LIABILITY FOR THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SUCH PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY OR ITS EMPLOYEES OR AGENTS.
8.1. Confidential Information. “Confidential Information” means any nonpublic information of Company, whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the Customer knows or should have known is the confidential or proprietary information of the Company. The Services, Documentation and Bindle Solution, and all enhancements and improvements thereto will be considered Confidential Information of Company.
8.2. Protection of Confidential Information. Customer agrees that it will not use or disclose to any third party any Confidential Information of Company, except as expressly permitted under this Agreement. Customer will limit access to the Confidential Information to Authorized Customer Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Company). In addition, Customer will protect Company’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At Company’s request or upon termination or expiration of this Agreement, Customer will return to Company or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that Customer does not have a continuing right to use under this Agreement, and Customer will, upon request, certify to Company its compliance with this sentence.
8.3. Exceptions. The confidentiality obligations set forth in Section 8.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of Customer; (b) is lawfully provided to Customer by a third party free of any confidentiality duties or obligations; (c) was already known to Customer at the time of disclosure free of any confidentiality duties or obligations; or (d) Customer can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of Customer who had no access to the Confidential Information. In addition, Customer may disclose Confidential Information to the extent that such disclosure is necessary for Customer to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) Customer promptly notifies Company in writing of such required disclosure and cooperates with Company if Company seeks an appropriate protective order.
9.1. By Company. Company will defend at its expense any suit brought against Customer, and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the System Materials infringe such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the System Materials becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Customer the right to continue using the System Materials; (b) replace the System Materials with non-infringing software or services which do not materially impair the functionality of the System Materials; (c) modify the System Materials so that they become non-infringing; or (d) terminate this Agreement and refund any unused prepaid fees for the remainder of the Term then in effect, and upon such termination, Customer will immediately cease all use of the System Materials. Notwithstanding the foregoing, Company will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the System Materials not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the System Materials in combination with other products, equipment, software or data not supplied by Company; or (iii) any modification of the System Materials by any person other than Company or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”).
9.2. By Customer. Customer will defend at its expense any suit brought against Company, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, (b) Customer’s breach or alleged breach of this Agreement or obligations arising herefrom, (c) permitting Self-Attestation under the Health Screening Policy, (d) the Waivers, including any claim of unenforceability, or (e) Customer’s relationship or dealings with End Users.
9.3. Procedure. In connection with the indemnifying party’s obligations as set forth above: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit (“Claim”); (b) the indemnifying party will have sole control of the defense or settlement of any Claim except that the indemnifying party shall not settle any such Claim without first obtaining the indemnified party’s prior written consent where the settlement of such Claim results in any admission of wrongdoing or liability on the part of the indemnified party, fails to grant the indemnified party a release of all claims, imposes any obligation on the indemnified party (other than, in the case of an infringement Claim, an obligation for Customer to cease using the allegedly infringing System Materials), or imposes any liability on the indemnified party (other than monetary liability for which the indemnified party is fully indemnified by the Indemnifying Party); and (c) the indemnified party will reasonably cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10. TERM; SUSPENSION AND TERMINATION.
10.1. Term. The initial term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, will remain in effect for the “Initial Term” twelve (12) months. Upon the expiration of the Initial Term, this Agreement will automatically renew for twelve (12) months unless either party notifies the other in writing of an intent not to renew at least thirty (30) days prior to the expiration of the Initial term or the then-current Renewal Term. For One Time Events, if the number of entry passes generated exceeds the maximum number of attendees in your selected tier, the event will be billed based on entry pass volume.
10.2. Suspension. Notwithstanding anything to the contrary in this Agreement and in addition to any other rights or remedies Company may have, Company may temporarily suspend Customer’s and all Authorized Customer Users’ access to the Services if Company reasonably determines that: (a) there is a threat or attack on the Services or the systems or networks used to provide the Services (collectively, “Service Systems”); (b) Customer’s or any Authorized Customer User’s use of the Services disrupts or poses a security risk to the Service Systems or to any other customer of Company; (c) Customer, or any Authorized Customer User, is using the Services for fraudulent or illegal activities; (d) Customer or an Authorized User has breached the provisions of Section 3.2; or (e) if any Fees are more than thirty (30) days overdue (any such suspension described above, a “Service Suspension”). Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer. Company shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damages or losses suffered by Customer, or any other consequences that Customer or any Authorized Customer User may incur, as a result of a Service Suspension.
10.3. Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
10.4. Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) all licenses granted hereunder and the provision of Services by the Company will immediately terminate and (b) any amounts owed to Company under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3.2 (Restrictions), 3.4 (Feedback); 4 (End User Data), 5 (Fees and Expenses; Payments), 6.2 (Disclaimer), 7 (Limitation of Liability), 8 (Confidentiality), 9 (Indemnification), 10.4 (Effect of Termination), and 11 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
11.1. Governing Law and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its provisions on conflicts of law. Any dispute arising from this Agreement will be resolved exclusively in the Federal and state courts located in New York County, New York. Each party waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Agreement in such courts, and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum.
11.2. Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
11.3. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.4. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.5. No Assignment. Neither party will assign or otherwise transfer this Agreement, in whole or in part, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
11.6. Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to the exercise of the rights granted to Customer under this Agreement with respect to the System Materials.
11.7. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood or other natural disaster, government action or change in law, pandemic, war, terrorist activity, civil unrest, disruption of the Internet or any other event beyond the reasonable control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.8. Independent Contractors. Customer’s relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Company.
11.9. Notices. All notices required or permitted under this agreement must be delivered in writing, if to Company, by emailing firstname.lastname@example.org and if to Customer by emailing the Customer point of contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
11.10. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
11.11. Government Customers. The System Materials are “commercial items,” as that term is defined in 48 C.F.R. §2.101. Any use modification, reproduction, release, performance, display, or disclosure of the System Materials by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. If a government agency has a need for rights not granted under these terms, it must negotiate with Company to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be executed by both parties in order for such rights to become effective.
11.12. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Company.