ZENAPSE MASTER SUBSCRIPTION AGREEMENT

Version 1.01 July 29, 2022

https://zenapse.com/legal/msa

THIS ZENAPSE MASTER SUBSCRIPTION AGREEMENT (this “Agreement”) governs any order form that incorporates by reference this Agreement (each, an “Order Form”) executed by and between Zenapse, Inc., a Delaware corporation with its principal place of business at 55 Post Rd., Second Floor, Westport, CT 06880 (“Zenapse”), and the client or customer identified in such Order Form (“Client”). Zenapse and Client are referred to herein together as the “Parties” and each individually as a “Party.” In consideration of the mutual promises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  • 1. Definitions.  The following terms have the meanings set forth below:

    • 1.1 “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

    • 1.2 “Affiliate” of a Party means any third party that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies, whether through the ownership of voting securities, by contract, or otherwise.

    • 1.3 “Applicable Privacy Laws” means, in relation to any Personal Data that is processed in the provision of the Services, the applicable legislation on the protection of identifiable individuals or households, including where applicable the General Data Privacy Regulation (Regulation (EU) 2016/679) (“GDPR”), the California Consumer Privacy Act (“CCPA”), the California Privacy Rights and Enforcement Act (“CPRA”), and other applicable data protection or national or state privacy legislation in force, including where applicable, binding statutes, decisions and guidelines issued from time to time by courts, data protection authorities and other applicable government authorities.

    • 1.4 “Client Data” means information, data, and other content, in any form or medium, originating from Client and entered or uploaded to the Services by Client or any Authorized User. For the avoidance of doubt, Client Data does not include Collected Data or Usage Data, as herein defined.

    • 1.5 “Collected Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, by Zenapse through Client’s deployment of the Subscription Services. For the avoidance of doubt, Collected Data does not include Restricted Data or Client Data, as herein defined.

    • 1.6 “Documentation” means any manuals, instructions, or other documents or materials that Zenapse provides or makes available to Client in any form or medium and which describe the functionality, components, features, or requirements of the Zenapse Properties, including any aspect of the installation, configuration, integration, operation, use, or support thereof.

    • 1.7 “Effective Date” means the effective date specified in the Order Form. 

    • 1.8 “Intellectual Property Rights” means all rights throughout the world, whether existing under statute or at common law or equity now or hereafter in force or recognized, including, but not limited to, patents, rights in inventions (whether or not patentable or reduced to practice) and invention disclosures, know-how, knowledge, copyrights, software, algorithms, user interfaces, ideas, concepts, techniques, methods, the right to sue for passing off, rights in designs, database rights, (including rights to extraction), mask works rights, moral rights, trade secrets, trademarks, trade names, business names, service marks, goodwill, trade dress, domain names, or other intellectual property or proprietary rights (including, but not limited to, applications for any of the foregoing rights, and all registrations, extensions, renewals, and re-issuances of, the foregoing).

    • 1.9 “Personal Data” means any information that by itself or in combination does or can identify a specific individual, or as otherwise defined in the Applicable Privacy Laws.

    • 1.10 “Restricted Data” means any confidential or personal information that is protected by law and that requires the highest level of access control and security protection, whether in storage or in transit, including, but not limited to: (a) government-issued identification numbers, including social security numbers or other tax identification numbers, driver’s license numbers, passport numbers or other state-issued identification numbers; (b) unencrypted passwords or other authentication credentials or the combination of a username or email address along with a password or security question that would permit access to an online account; (c) protected health information, or any electronic protected health information (or other information subject to the HIPAA and HITECH Acts); (d) credit, debit or payment card information, financial or bank account information, or other information subject to PCI security standards; (e) data relating to a person under the age of sixteen (16) years old or subject to the Children’s Online Privacy Protection Act of 1998, 15 U.S.C. 6501-6505; (f) data that is subject to regulatory or contractual handling requirements under the Gramm-Leach-Bliley Act; and (g) data classified as “special category data” (or similar term) under Applicable Privacy Laws, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual orientation, genetic data, biometric data, or the commission or alleged commission any crime or offense about residents of Switzerland or any member country of the European Union.

    • 1.11 “Services” means, collectively: (a) certain subscription services offered by Zenapse on a software-as-a-service basis as set forth on the applicable Order Form “(Subscription Services”); and (b) certain professional services as set forth on the applicable SOW, including consulting, training, and support services (“Professional Services”).

    • 1.12 “SOW” means a statement of work in a written order form executed between the parties that specifies the fees for, and the scope and other details of, Professional Services.

    • 1.13 “Subscription Term” means the term of the Subscription Services as set forth in the applicable Order Form.

    • 1.14 “Usage Data” means all information, data, statistics, analytics, trends, or other content derived from Zenapse’s monitoring of Client’s and each Authorized User’s access to or use of the Services, excluding any Client Data.

    • 1.15 “Zenapse Properties” means the Subscription Services, the Documentation, Collected Data, Usage Data, Deliverables, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, models, algorithms, generated profiles, hardware, software, information technology infrastructure and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Zenapse or any subcontractor in connection with any of the foregoing.

  • 2. Services

    • 2.1 Access and Use.  Subject to Client’s ongoing compliance with the terms and conditions of this Agreement, Zenapse hereby grants to Client the limited, non-exclusive, non-transferable, non-sublicensable right and license in the United States during the Subscription Term: (a) to access and use the Subscription Services and to obtain the Services during the Subscription Term solely for which Client has paid the applicable fees and solely for Client’s internal business purposes; and (b) to use the Documentation during the Subscription Term solely for Client’s internal business purposes in connection with its use of the Services. Zenapse and its licensors reserve all rights not expressly granted in this Agreement. 

    • 2.2 Authorized Users.  The license rights granted by Zenapse to Client under this Agreement shall extend to Client’s employees and contractors working for Client in the ordinary course of Client’s business who are specifically authorized by Client in writing to access and use the Subscription Services and obtain the Services for Client’s internal business purposes pursuant and subject to the terms and conditions of this Agreement (each, an “Authorized User”). Client acts solely at its own risk. Client shall have sole liability and responsibility for the acts and omissions of Authorized Users, including, without limitation, Authorized Users’ compliance with the terms and conditions of this Agreement.

    • 2.3 Service Manager.  Client shall, throughout the Subscription Term, maintain within its organization a service manager (the “Service Manager”) to serve as Client’s primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement. The Service Manager shall be responsible for providing all day-to-day consents and approvals on behalf of Client under this Agreement. Client shall ensure that its Service Manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. If Client’s Service Manager ceases to be employed by Client or Client otherwise wishes to replace its Service Manager, Client shall promptly name a new Service Manager by prior written notice to Zenapse. Client shall be solely responsible for any delays in Services to the extent arising from or relating to the acts or omissions of Client’s Service Manager, or Client’s replacement thereof.

    • 2.4 Service and System Control.  Except as otherwise expressly provided in this Agreement, as between the Parties: (a) Zenapse has and shall retain sole control over the operation, provision, maintenance, and management of the Zenapse Properties; and (b) Client has and shall retain sole control over the operation, maintenance, and management of, and all access to and use of, Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party services (“Client Systems”). Client shall be solely responsible for all access to and use of the Zenapse Properties by any person by or through the Client Systems or any other means controlled by Client or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to Zenapse; (ii) results obtained from any use of the Services or Zenapse Properties; and (iii) conclusions, decisions, or actions based on such use.

    • 2.5 Changes.  Zenapse reserves the right, in its sole discretion, to make any changes to the Services and Zenapse Properties that it deems necessary or useful: (a) to maintain or enhance: (i) the quality or delivery of Zenapse’s products or services to its customers; (ii) the competitive strength of or market for Zenapse’s products or services; or (iii) Zenapse’s cost efficiency or performance; or (b) to comply with applicable law.

    • 2.6 Suspension or Termination of Services.  Zenapse shall have the right, directly or indirectly, and by use of any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) or any other lawful means, to suspend, terminate, or otherwise deny Client’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services or Zenapse Properties, without incurring any resulting obligation or liability, if: (a) Zenapse receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Zenapse to do so; (b) Zenapse believes, in its sole discretion, that: (i) Client or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services or Zenapse Properties beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Documentation; or (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Services or Zenapse Properties; or (c) this Agreement is terminated. This Section does not limit any of Zenapse’s other rights or remedies, whether at law, in equity, or under this Agreement.

  • 3. Certain Client Obligations.

    • 3.1 Use Restrictions.  Client shall not, and shall not permit any other person to, access or use the Zenapse Properties except as expressly permitted by this Agreement and, in the case of any materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Zenapse Properties that are not proprietary to Zenapse, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits:

      • (a) copy, modify, or create derivative works or improvements of the Zenapse Properties;

      • (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Zenapse Properties to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;

      • (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Zenapse Properties, in whole or in part;

      • (d) bypass or breach any security device or protection used by the Zenapse Properties or access or use the Zenapse Properties other than by an Authorized User through the use of his or her own then-valid Access Credentials;

      • (e) input, upload, transmit, or otherwise provide to or through the Zenapse Properties, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby;

      • (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Zenapse Properties or Zenapse’s provision of products or services to any third party in whole or in part;

      • (g) remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Zenapse Properties, including any copy thereof;

      • (h) access or use the Zenapse Properties in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other rights of any third party or that violates any applicable law;

      • (i) access or use the Zenapse Properties for purposes of competitive analysis of the Zenapse Properties, the development, provision, or use of a competing software service or product or any other purpose that is to Zenapse’s detriment or commercial disadvantage; 

      • (j) use the Services: (i) in connection with advertising, marketing, or promoting adult entertainment or any products or services that are illegal under applicable law, including, without limitation, illegal gambling, and illegal firearms; (ii) for fraudulent, deceitful, defamatory, obscene, violent, hateful, or racially discriminatory purposes; or (iii) for purposes of credit granting, credit monitoring, account review, collection, insurance underwriting, employment or any other purpose covered by the Fair Credit Reporting Act (15 U.S.C. § 1681FCRA”), Federal Trade Commission interpretations of the FCRA, and similar state statutes; or

      • (k) otherwise access or use the Zenapse Properties beyond the scope of the authorization granted under this Agreement.

    • 3.2 Corrective Action and Notice.  If Client becomes aware of any actual or threatened activity prohibited by Section 3.1, Client shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to or use of the Zenapse Properties and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Zenapse of any such actual or threatened activity.

    • 3.3 Client Systems and Cooperation.  Client shall at all times: (a) set up, maintain, and operate in good repair and in accordance with the Documentation all Client Systems on or through which the Zenapse Properties are accessed or used; and (b) provide all cooperation and assistance as Zenapse shall reasonably request to enable Zenapse to exercise its rights and perform its obligations under and in connection with this Agreement. Zenapse is not and shall not be responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement.

    • 3.4 Non-Solicitation.  During the Subscription Term and for two (2) years thereafter, Client shall not, and shall not assist any other person to, directly or indirectly, recruit or solicit for employment or engagement as an independent contractor any person then or within the prior twelve (12) months employed or engaged by Zenapse or any subcontractor involved in any respect with the Zenapse Properties or the performance of this Agreement. In the event of a violation of this Section, Zenapse shall be entitled to liquidated damages equal to the compensation paid by Zenapse to the applicable employee or contractor during the prior twelve (12) months.

  • 4. Service Levels; Support.

    • 4.1 Service Levels.  During the Subscription Term and subject to the terms and conditions of this Agreement, Zenapse shall ensure that the Subscription Services meet the service level targets set forth in the Zenapse service level agreement available at https://zenapse.com/legal/sla (the “SLA”). Zenapse shall have the right to revise the SLA, provided that no such revisions shall materially degrade the performance of the Subscription Services required under the SLA. If Zenapse does not adhere to the stipulated service level, then as Zenapse’s sole obligation and liability and Client’s sole remedy, Client shall be entitled to service level credit in accordance with the SLA. Any such credits shall be deemed to constitute liquidated damages and not a penalty. 

    • 4.1 Support.  Subject to Client’s compliance with the terms and conditions of this Agreement, Zenapse shall provide Client with updates and technical support services generally made available from time to time to Zenapse customers, as specified in this Agreement. Client may purchase from Zenapse certain additional technical support and customer success services as Zenapse may offer from time to time, pursuant to an SOW between the Parties and subject to payment by Client of any applicable fees as specified in such SOW.

  • 5. Zenapse Professional Services.

    • 5.1 Statements of Work.  Client shall have the right to request Zenapse to perform certain Professional Services. Upon receipt of a written request from Client, Zenapse shall provide Client with a written proposal for the terms and conditions of such Professional Services engagement, subject to the mutual written agreement of the Parties in an SOW. All SOWs shall be subject to the terms and conditions of this Agreement.

    • 5.2 Non-Exclusivity; Deliverables.  Professional Services performed by Zenapse are not exclusive to Client, and Zenapse shall have the right to perform services of any type or nature for any other person or entity at any time. Zenapse shall retain all Intellectual Property Rights in and to any and all works of authorship, formulas, algorithms, databases, scripts, modifications, configurations, logos, symbols, designs, ideas and other inventions (whether patentable or not) that Zenapse authors, makes, conceives, reduces to practice, delivers, develops or otherwise creates, either alone or jointly with others, while performing Professional Services (collectively, “Deliverables”). Subject to Client’s compliance with the terms and conditions of this Agreement, Zenapse hereby grants Client during the Subscription Term a limited, non-exclusive, non-transferable right and license to use the Deliverables solely for its internal business purposes as necessary to Client’s related use of the applicable Zenapse Services or Deliverables. Notwithstanding any other provision of this Agreement, nothing herein shall be construed to assign or transfer to Client any Intellectual Property Rights in or to any Zenapse Services or Deliverables.

  • 6. Data, Privacy and Security.

    • 6.1 Restricted Data.  Client acknowledges that use of the Services does not require and is not intended for the collection, storage, or other processing of Restricted Data. Client agrees not to provide to Zenapse, or permit any third-party to provide to Zenapse on Client’s behalf, or deploy the Subscription Services in a manner that results in the collection, storage or processing of, any Restricted Data. Failure to comply with this requirement shall be deemed cause for termination under Section 13.2(a)(iii) in Zenapse’s sole discretion. If Restricted Data is inadvertently provided, Client shall promptly notify Zenapse in writing and provide all information necessary to identify such Restricted Data, and Zenapse shall treat it in the same way as it treats Personal Data under the Agreement. Client will use reasonable efforts to restrict the inclusion of other Personal Data in Client Data. 

    • 6.2 Client Security, Control, and Responsibility.  Client shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Zenapse Properties; and (ii) control the content and use of Client Data, including the uploading or other provision of Client Data for processing by the Services. Client has and shall retain sole responsibility for: (a) all Client Data, including its content, collection, processing, and use; (b) all information, instructions, and materials provided by or on behalf of Client or any Authorized User in connection with the Zenapse Properties; (c) Client Systems; (d) the security and use of Client’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Zenapse Properties directly or indirectly by or through the Client Systems or its or its Authorized Users’ Access Credentials, with or without Client’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Client must notify Zenapse without undue delay, about any possible misuse of its accounts or authentication credentials or any security incident related to the Subscription Services.  Client grants Zenapse the right to access and use the Client Data during the term of this Agreement.

    • 6.3 Privacy Notice.  During the Subscription Term, Zenapse shall post on its website a privacy notice that reflects Zenapse’s current data use and privacy practices, complies with applicable laws and regulations, and instructs users how to opt out of placement of cookies on their browsers. Zenapse shall maintain an opt out mechanism compliant with applicable law and accessible through its website. Each Party shall comply with all Applicable Privacy Laws. 

    • 6.4 Data Security.  Zenapse has implemented and will maintain and follow commercially reasonable technical and organizational measures intended to protect Personal Data against accidental, unauthorized, or unlawful access, disclosure, damage, alteration, loss, or destruction. If Zenapse becomes aware of any unlawful access to or loss, disclosure, or alteration of Personal Data (each a “Security Incident”), Zenapse shall notify Client of the Security Incident without undue delay (provided that such notification may be delayed as required by a law enforcement agency) and take commercially reasonable steps to comply with its obligations under Applicable Privacy Laws pertaining to responding to a Security Incident. Zenapse’s obligation to report or respond to a Security Incident under this Section is not an acknowledgement by Zenapse of any fault or liability with respect to the Security Incident. 

    • 6.4 GDPR.  As of the Effective Date, neither Party intends to provide the other Party with Personal Data that is subject to the requirements of the GDPR. In the event of a change, the Parties shall enter into a Data Processing Agreement (“DPA”) acceptable to both Parties that shall apply to and supplement this Agreement. Until such time as the Parties have entered into a DPA, all Personal Data subject to GDPR requirements shall be deemed Restricted Data for purposes of this Agreement. Notwithstanding the foregoing, if any Authorized User or data subject is located in the European Economic Area (“EEA”), Switzerland and/or the United Kingdom, Client represents, warrants and covenants that it shall obtain and maintain all appropriate consents, make all necessary disclosures, and otherwise conform to and comply with all applicable laws of the EEA, Switzerland and/or the United Kingdom related to any Personal Data included in Client Data provided in the course of using the Services or collected or otherwise processed by the Subscription Services.

    • 6.5 CCPA/CPRA.  To the extent Zenapse receives data pursuant to this Agreement that is subject to CCPA and CPRA, Zenapse certifies that it understands and will comply with its obligations as a service provider under the CCPA and CPRA. Client is responsible for ensuring its compliance with the requirements of the CCPA and CPRA in its use of the Zenapse Properties and Professional Services that Zenapse provides to Client and Client’s own processing of Personal Data.

    • 6.6 Client Obligations.  For any Client Data disclosed to Zenapse, Client represents, warrants and covenants to Zenapse that: (a) Client fully owns or has the authority to use the Client Data as set forth in this Agreement and any applicable Order Form or SOW, and that in obtaining or collecting the Client Data, it has not and will not violate any applicable law or regulation, or the rights of any third-party; (b) at the time of delivery of such Client Data, Client will have obtained, and thereafter shall at all times relevant maintain, all appropriate consents, make all necessary disclosures, and otherwise conform to and comply with all Applicable Privacy Laws related to any Personal Data included in Client Data provided in the course of using the Services or collected or otherwise processed by the Subscription Services; (c) Client shall not instruct Zenapse to process or to take any other action with respect to any such Client Data that Client knows, or should reasonably know, would violate any law applicable to Client or Zenapse, Client’s own published privacy policies, or any other applicable privacy policies, notices, or disclosure statements; (d) Client has complied and shall comply with all user requests, including, without limitation, requests of individuals to exercise their rights under Applicable Privacy Laws, and it shall inform Zenapse of any such requests (including providing Zenapse with updated Client Data) within a reasonable time period, as required by law, during the duration of the applicable Services; (e) Client shall not attempt to re-identify or otherwise reverse engineer any data it receives from Zenapse in connection with any Services, including, without limitation, to derive personally identifiable information (i.e., information that could reasonably be linked directly or indirectly with a particular consumer or household) from, or merge directly identifiable personal information with, any pseudonymous, anonymous, or de-identified information provided by Zenapse without explicit permission under the applicable Order Form or SOW; and (f) Client shall, at all times relevant, post, maintain and abide by a privacy policy that complies with all Applicable Privacy Laws.

  • 7. Fees and Payment.

    • 7.1 Fees.  Client shall pay Zenapse the fees set forth in the applicable Order Form or SOW (“Fees”) in accordance with this Section 7 and the applicable Order Form or SOW. Unless otherwise agreed in the applicable Order Form or SOW, Client shall pay all Fees in U.S. dollars within thirty (30) days after the date of the invoice therefor. All Fees invoiced shall be non-refundable and non-cancellable, unless otherwise provided for herein.

    • 7.2 Taxes.  All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Zenapse’s income.

    • 7.3 Late Payment.  If Client fails to make any payment when due then, in addition to all other remedies that shall be available, Zenapse shall have the right to charge interest on the past due amount at the lesser of the monthly rate of 1.5% and the highest rate permitted under applicable law. If such failure continues for thirty (30) days following written notice thereof, Zenapse shall have the right to suspend performance of the Services or access to the Zenapse Properties until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client or any third party by reason of such suspension.

    • 7.4 No Deductions or Setoffs.  All amounts payable to Zenapse under this Agreement shall be paid by Client to Zenapse in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as required by applicable law).

    • 7.5 Audits.  Zenapse or its nominee (including its accountants and auditors) shall have the right, in Zenapse’s sole discretion, to inspect and audit Client’s use of the Zenapse Properties or Professional Services under this Agreement at any time during the Subscription Term and for two (2) years following the termination or earlier expiration of this Agreement. Client shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as reasonably requested by or on behalf of Zenapse with respect to such audit. If the audit determines that Client’s use of the Zenapse Properties or Professional Services exceeded the usage permitted by this Agreement, Client shall pay to Zenapse all amounts due for such excess use, plus interest on such amounts, as calculated pursuant to Section 7.3. If the audit determines that such excess use equals or exceeds 5% of Client’s permitted level of use, Client shall also pay to Zenapse all costs incurred by Zenapse in conducting the audit. Client shall make all payments required under this Section 7.5 within fifteen (15) days of the date of written notification of the audit results.

  • 8. Confidentiality.

    • 8.1 Confidential Information.  The Parties acknowledge that by reason of their relationship hereunder, each Party shall disclose or provide access to the other certain Confidential Information. For purposes of this Agreement, “Confidential Information” means all non-public information disclosed by one Party to the other Party in any form or medium, whether written, oral, or electronic, pursuant to this Agreement, that is designated as confidential or proprietary or that a reasonable person should understand is confidential and proprietary. Confidential Information includes, but is not limited to, the terms of any agreement and the discussions, negotiations and proposals related thereto, and information concerning a Party’s products, business and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other Intellectual Property Rights of a Party and its Affiliates, and the Zenapse Properties. All Confidential Information shall remain the exclusive property of the disclosing Party.

    • 8.2 Use of Confidential Information; Standard of Care.  The receiving Party shall maintain the disclosing Party’s Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors and representatives who: (a) have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement; (b) have been informed of the confidential nature of the Confidential information furnished by the disclosing Party and the receiving Party’s obligations with respect thereto; and (c) are under confidentiality obligations no less restrictive as this Agreement. The receiving Party shall be responsible for breaches of this Agreement arising from the acts of its employees, subcontractors, and representatives. The receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Each Party shall only use the Confidential Information in furtherance of its performance of its obligations under this Agreement or by Zenapse to improve the Services, and each Party agrees not to use the other Party’s Confidential Information for any other purpose or for the benefit of any third party.

    • 8.3 Exceptions; Required Disclosures.  Confidential Information does not include information that: (a) was lawfully in the receiving Party’s possession before receipt from the disclosing Party, as established by competent evidence; (b) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the receiving Party; (c) is received by the receiving Party from a third party free to make such disclosure without, to the best of the receiving Party’s knowledge, breach of any legal or contractual obligation; (d) is independently developed by the receiving Party without use of the Confidential Information, as demonstrated by competent evidence; or (e) is disclosed by the receiving Party with the disclosing Party’s prior written approval. If the receiving Party is confronted with legal action to disclose Confidential Information received under this Agreement, it shall, unless prohibited by applicable law, provide prompt written notice to the disclosing Party to allow the disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and the receiving Party shall reasonably assist the disclosing Party in such efforts. If disclosure is nonetheless required, the receiving Party shall limit its disclosure to only that portion of the Confidential Information that it is advised by its legal counsel must be disclosed.

    • 8.4 Unauthorized Disclosure; Injunctive Relief.  In the event the receiving Party discovers that any Confidential Information has been used, disseminated, or accessed in violation of this Agreement, it shall: (a) immediately notify the disclosing Party; (b) take all commercially reasonable actions available to minimize the impact of the use, dissemination, or publication; and (c) take any and all necessary steps to prevent any further breach of this Agreement.

    • 8.5 Equitable Relief.  The receiving Party acknowledges that the unauthorized disclosure or use of the other party’s Confidential Information may result in substantial and irreparable harm to the other party and that monetary damages will be difficult to determine and inadequate to compensate the other party. Therefore, the receiving Party agrees that, upon any breach of the obligations in this Section 8 by the receiving Party, the disclosing party shall be permitted to seek equitable relief such as an injunction, in addition to any other available remedies.

  • 9. Intellectual Property and Proprietary Rights.

    • 9.1 Client Data.  As between Zenapse and Client, all right, title and interest in and to the Client Data is and shall remain the exclusive property of Client. Client hereby grants to Zenapse the non-exclusive, royalty-free, worldwide, freely transferable, perpetual right and license to use the Client Data and perform all acts with respect to the Client Data: (a) as shall be necessary for Zenapse to provide the Services to Client; (b) to improve Zenapse’s current and future offerings; (c) for industry analysis, benchmarking, and analytics, provided such Client Data is in an aggregated and anonymized format; and (d) as otherwise authorized by Client in writing. Zenapse shall have the right to monitor and collect data from Client’s use of the Subscription Services for license compliance and to prevent fraud and illegal activity.

    • 9.2 Zenapse Properties.  All right, title and interest, including all worldwide Intellectual Property Rights, in and to the Zenapse Properties are and shall remain the exclusive property of Zenapse or its licensors and are protected by U.S. and international laws. This is not an assignment or “work for hire” agreement, and nothing in this Agreement grants to Client any ownership or use rights with respect to the Zenapse Properties except for the license and access rights expressly granted in this Agreement. Client shall not take any actions to claim or assert ownership of any Zenapse Properties or seek to register Intellectual Property Rights in or to any Zenapse Properties.

    • 9.3 Feedback.  Client hereby agrees that Zenapse shall have the unrestricted, transferable, worldwide, fully paid, royalty-free right and license to use, practice and exploit any evaluations, ideas, feedback, and suggestions made by Client to Zenapse regarding the Zenapse Properties (collectively, “Feedback”), including, without limitation, the right to use and exploit all Intellectual Property Rights in the Feedback.

  • 10. Representations, Warranties and Covenants.

    • 10.1 Mutual Representations, Warranties and Covenants.  Each Party represents, warrants and covenants to the other Party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, this Agreement shall constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

    • 10.2 Limited Subscription Services Warranty.  Zenapse warrants that the Subscription Services will operate substantially in compliance with the applicable Documentation during the Subscription Term, provided that the Subscription Services have been used solely as described in the applicable Documentation and have not been modified or added to other than by Zenapse. If the Subscription Services do not perform as warranted, Zenapse will undertake, at its sole option and as Client’s exclusive remedy for breach of this warranty: (a) to correct the non-conformance; or (b) if Zenapse determines that it is not commercially reasonable or possible to correct a material non-conformity within a reasonable time from receipt of written notice from Client detailing the warranty claim, the Order Form for the affected Subscription Services shall be cancelled and Zenapse shall refund any unused prepaid fees for the affected Subscription Services.

    • 10.3 Limited Professional Services Warranty. Zenapse shall use commercially reasonable efforts to perform the Professional Services and deliver the Deliverables according to the specifications, if any, set forth in the relevant SOW. If Zenapse fails to do so and Client notifies Zenapse within thirty (30) days of the date the Professional Services were performed, Zenapse shall undertake at its sole option and as Client’s exclusive remedy for breach of this warranty: (a) to re-perform the non-conforming Professional Services; or (b) if Zenapse determines that re-performance is not commercially reasonable, the SOW for the affected Professional Services shall be cancelled and Zenapse shall refund to Client any pre-paid fees corresponding to the affected Professional Services.

    • 10.4 Additional Client Representations, Warranties, and Covenants.  Client represents, warrants, and covenants to Zenapse that: (a) Client owns or otherwise has and shall have all necessary rights and consents in and relating to the Client Data so that such Client Data, and the use and processing thereof in accordance with this Agreement, does not and shall not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law; and (b) Client has obtained and shall, throughout the Subscription Term, maintain in full force and effect, all rights necessary for Zenapse to access, obtain, process, use and own all Collected Data, including, without limitation, by posting on Client’s website and wherever Client deploys the Subscription Services a privacy notice that expressly notifies users of Zenapse’s activities and ownership of Collected Data, and other such notices as Zenapse may from time to time require. 

    • 10.5 DISCLAIMER OF WARRANTIES.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 10.1-10.3, ALL ZENAPSE PROPERTIES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ZENAPSE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ZENAPSE MAKES NO WARRANTY OF ANY KIND THAT THE ZENAPSE PROPERTIES OR PROFESSIONAL SERVICES, OR ANY RESULTS OF THE USE THEREOF, SHALL: (a) MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE COMPATIBLE WITH ANY SOFTWARE, HARDWARE, SYSTEM, OR OTHER PRODUCTS OR SERVICES; (e) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE; OR (f) ACCORD WITH THE LAWS, REGULATIONS OR RULES APPLICABLE TO CLIENT OR ANY OTHER PERSON. ZENAPSE IS NOT RESPONSIBLE FOR THE IMPACT ON THE ACCURACY, RELIABILITY, AVAILABILITY OR TIMELINESS OF RESULTS OF FACTORS OUTSIDE ITS REASONABLE CONTROL, INCLUDING CLIENT’S NETWORK ISSUES, VERSIONS OF CLIENT APPLICATIONS, CORRUPTED, INCOMPLETE, OR INTERRUPTED DATA RECEIVED FROM CLIENT OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH THIRD-PARTY MATERIALS.

  • 11. Indemnification.

    • 11.1 Client Indemnification.  Client shall indemnify, defend, and hold harmless Zenapse and its subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, an “Indemnitee”) from and against any and all losses, damages, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”) incurred by such Indemnitee resulting from any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise (“Action”) that arise from or relate to, or are alleged to arise from or relate to: (a) Client Data or Collected Data, including any processing of Client Data or Collected Data by or on behalf of Zenapse in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Client or any Authorized User, including Zenapse’s compliance with any specifications or directions provided by or on behalf of Client or any Authorized User; (c) allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Client or any Authorized User in connection with this Agreement.

    • 11.2 Indemnification Procedure.  The Indemnitee shall promptly notify Client in writing of any Action for which such Indemnitee believes it is entitled to be indemnified pursuant to this Agreement. The Indemnitee shall cooperate with Client at Client’s sole cost and expense. Client shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at Client’s sole cost and expense. The Indemnitee shall have the right to participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Client shall not settle any Action without the Indemnitee’s prior written consent. If Client fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action at Client’s expense, including settling such Action after giving notice to Client, in each case in such manner and on such terms as the Indemnitee shall deem appropriate.

  • 12. Limitations of Liability.

    • 12.1 EXCLUSION OF DAMAGES.  IN NO EVENT SHALL ZENAPSE OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    • 12.2 CAP ON MONETARY LIABILITY.  IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ZENAPSE AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AGGREGATE AMOUNT PAID OR PAYABLE BY CLIENT HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

    • 12.3 Exceptions.  The exclusions and limitations in this Section do not apply to liability for Zenapse’s willful misconduct or to the extent otherwise prohibited by applicable law.

  • 13. Term and Termination.

    • 13.1 Term; Renewal.  This Agreement shall commence as of the Effective Date and shall continue in effect until terminated in accordance with this Agreement’s express provisions. Each Party may terminate this Agreement upon written notice to the other Party if there are no Order Forms or SOWs then in effect. Except as otherwise specified in an Order Form, the term of each Order Form shall automatically renew for additional periods equal to the expiring Subscription Term or one (1) year (whichever is shorter), unless either Party gives the other Party written notice of non-renewal at least thirty (30) days before the end of the unexpired Subscription Term. The pricing during any renewal term is subject to change, provided that notice of any such change is provided to Client in writing at least forty-five (45) days prior to end of the then-current Subscription Term.  

    • 13.2 Termination.

      • (a) Termination for Breach.  Each Party shall have the right to terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured for thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. In addition, Zenapse shall have the right to terminate this Agreement immediately upon written notice in the event that: (i) Client fails to pay any amounts due hereunder, and such failure continues for more than ten (10) days following written notice thereof; (ii) Client or its users infringe, misappropriate or otherwise violate Zenapse’s Intellectual Property Rights; or (iii) Client breaches any of its obligations under Section 3.1 (Use Restrictions), Section 6 (Data, Privacy, Security), or Section 8 (Confidentiality). Termination shall be in addition to any other remedies available to the non-breaching Party.

      • (b) Termination for Bankruptcy, Insolvency or Financial Insecurity.  Either Party shall have the right to terminate this Agreement immediately at its option upon written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. § 365.

      • (c) Other Termination or Suspension.  In the event it becomes illegal for Zenapse to perform any of its obligations under this Agreement, then Zenapse shall be excused from performance and shall have the right to suspend or terminate this Agreement upon written notice to Client to the extent necessary to comply with applicable laws, rules, or regulations, without liability for breach or termination.

    • 13.3 Effect of Termination or Expiration.  Upon any termination or expiration of this Agreement:

      • (a) except for any perpetual rights, licenses, consents, or authorizations granted in this Agreement, all rights, licenses, consents, and authorizations granted by either Party to the other hereunder shall immediately terminate;

      • (b) Zenapse shall have no further liability or obligation to Client or any third party with respect to the Services provided under this Agreement;

      • (c) Client shall immediately cease all use of the Zenapse Properties, and: (i) within thirty (30) days from the date of termination, return to Zenapse, or at Zenapse’s written request, destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Zenapse Properties or Zenapse’s Confidential Information; (ii) permanently erase all Zenapse Properties and Zenapse’s Confidential Information from all systems that Client directly or indirectly controls; and (iii) certify to Zenapse in writing that it has complied with the requirements of this Section;

      • (d) Zenapse shall have the right to disable all Client and Authorized User access to the Zenapse Properties;

      • (e) if Client terminates this Agreement pursuant to Section 13.2(a) due to an uncured material breach by Zenapse, Client shall be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Zenapse shall refund to Client any Fees paid in advance for Services that Zenapse has not performed as of the effective date of termination; and

      • (f) if Zenapse terminates this Agreement pursuant to Section 13.2(a) or Section 13.2(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Subscription Term shall become immediately due and payable, and Client shall pay such Fees, together with all Fees previously accrued but not yet paid and other amounts due, on receipt of Zenapse’s invoice therefor.

    • Surviving Terms.  Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement shall so survive regardless of the cause and even if resulting from the material breach of either Party.

  • 14. General Terms.

    • 14.1 Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law. The Uniform Commercial Code and the Uniform Computer Information Transaction Act shall not apply. PURSUANT TO ARTICLE 6 OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (“UN CONVENTION”), THE PARTIES AGREE THAT THE UN CONVENTION SHALL NOT APPLY TO THIS AGREEMENT. The Parties hereby agree that any suit, action or proceeding arising out of this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case located in the city of New York and County of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

    • 14.2 Export Law Compliance.  Each Party shall comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Services. Each Party represents that it is not on any U.S. government list of persons or entities with whom U.S. persons are prohibited from transacting; nor owned or controlled by or acting on behalf of or allowing the use of the Services by any such persons or entities.

    • 14.3 Relationship of the Parties.  The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties, and neither Party (nor any agent or employee of such Party) shall make any representations or warranties or incur any liability on behalf of the other. Each Party shall be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

    • 14.4 Force Majeure.  Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations (except for Client’s payment obligations) under this Agreement if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, quarantines, acts of God, in addition to any and all events, regardless of their dissimilarity to the foregoing, beyond the reasonable control of the Party deemed to render performance of this Agreement impracticable or impossible (each, a “Force Majeure Event”), for so long as such Force Majeure Event is in effect.

    • 14.5 Notices.  Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a Party as set forth in the Order From (or to such other address or such other person that such Party may designate from time to time in accordance with this Section). Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours.

    • 14.6 Public Announcements.  Zenapse shall have the right to include Client’s name and logo on its lists of Zenapse’s current or former customers in Zenapse’s promotional and marketing materials and websites.

    • 14.7 Headings.  The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

    • 14.8 Entire Agreement.  This Agreement, together with the SLA and each Order Form and each SOW incorporating this Agreement, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and the applicable SLA, Order Form or SOW, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency or conflict between the statements made in the body of this Agreement and an Order Form or SOW, the terms of the Order Form or SOW shall prevail.

    • 14.9 Assignment.  Neither Party may assign or transfer any of its rights or obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise without the other Party’s prior written consent, which shall not be unreasonably withheld; provided, however, that no consent shall be required for an assignment of this Agreement by Zenapse to a successor of all or substantially all of its assets or business related to this Agreement. Any attempted assignment in violation of this Section will be null and void. Subject to the foregoing, the Agreement will inure to the benefit of and be binding upon the Parities and their respective successors and permitted assigns.

    • 14.10 Subcontractors.  Zenapse shall have the right in its sole discretion to engage third parties from time to time to perform or deliver Services under this Agreement.

    • 14.11 No Third-Party Beneficiaries.  This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

    • 14.12 Amendment and Modification; Waiver.  No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

    • 14.13 Severability.  If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

    • 14.14 Counterparts.  An Order Form or SOW (and therefore, this Agreement, by incorporation into such Order Form or SOW) may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument, without necessity of production of the others. A counterpart executed by electronic means or delivered in electronic format shall be deemed as effective as an original executed signature page.