Twine SaaS Agreement
TWINE SUBSCRIPTION AGREEMENT
This Subscription Agreement, including any of its exhibits, annexes and appendixes(collectively, the “Agreement”), is entered into by and between TwineSecurity Inc. or Twine Security Ltd. (as specified in the Order Form) (“Company”)and the entity executing the corresponding Order Form (“Customer”)(each, a “Party” and collectively, the “Parties”). By signing or other wise accepting the Order Form, Customer acknowledges and represents that it has fully read and understood, and agrees to be bound by, the terms of this Agreement (the date of such occurrence being the “Effective Date”).Customer may use the Services (as defined below) subject to the terms below.
IfCustomer has purchased the license granted hereunder from a reseller,distributor or other channel partner authorized by Company (“Partner”),and any conflict exists between this Agreement and the agreement entered intobetween Customer and the Partner, including any purchase order thereunder (“PartnerOrder Form”), then, as between Customer and Company, this Agreement shallprevail. Any rights granted to Customer in such Partner Order Form which arenot expressly contained in this Agreement shall apply only as between Customerand such Partner under the Partner Order Form, and not under this Agreement andCompany shall have no obligation, liability or warranty with regards to suchundertakings.
Definitions. The following capitalized terms have themeanings set forth below:
1.1 “Affiliate”with respect to any entity, means any other entity controlling, controlled byor under common control with such entity, where “control” means direct orindirect ownership or voting control of fifty percent (50%) or more of theequity or voting securities of the entity in question or having the power, bycommitment or otherwise, to elect a majority of the Board of Directors (orsimilar governing body) of the entity in question.
1.2 “CustomerData” means electronic data and content that originates, resides on, or isotherwise processed through Customer's systems and processed by Company in theprovision of the Service by Customer excluding Analytics Information (definedbelow).
1.3 “Feature”means any module, tool, functionality, or feature of the Service.
1.4 “OrderForm” means a written or electronic order form, to/in which this Agreementis attached or incorporated, and which is agreed by the Parties. The Order Formshall include the commercial terms, including the Subscription Scope, agreedbetween the Parties.
1.5 “SubscriptionScope” means any Service usage and/or limitations set forth in the OrderForm or Partner Order Form (if purchased via Partner).
1.6 “SubscriptionTerm” means either the Service subscription period specified in the OrderForm or Partner Order Form, as the case may be.
1.7 “Users”means an employee of Customer authorized to access and use the Service onbehalf of Customer.
Subscription.
2.1 Access Right. Subject to the terms and conditions of this Agreement, Companyhereby grants Customer a limited, worldwide, non-exclusive, non-sublicensable,non-transferable and revocable right to remotely access the Company’s digitalidentity experts software-as-a-service platform (the "Service")during the Subscription Term (defined below) for Customer's internal businesspurposes (collectively, the “Subscription”). Unless otherwise indicated,the term “Service” also includes any manual or documentationprovided or made available to Customer in connection with the operation of theService (“Documentation”). Customer may use the Service subject to theSubscription Scope, other usage limitations or restrictions specified in thisAgreement, and applicable laws and regulations.
Customer shall be solelyresponsible for providing all equipment, systems, assets, access, and ancillarygoods and services needed to access and use the Service and for ensuring theircompatibility with the Service.
1.1 Additional Purchases. Purchases of access to additional Features and/oradditional volume under the Subscription Scope (collectively, “AdditionalPurchases”) shall be documented by a mutually signed written addendum tothe Order Form or by executing a new Order Form, in each case according to thepricing agreed between the Parties. If Customer makes any Additional Purchasesduring a Subscription Term, the Subscription Fees and the Service term thereforwill be prorated to be coterminous with the Subscription Term.
1.2 Account Setup. In order to access the Service, Customer is required to set upan administrative account with Company, by submitting the information requestedin the applicable Service interface (“Account”), and each User may needto set up a user account (each, a “User Account”, and referencesherein to the “Account" shall be deemed to include all such User Accountsif applicable). Customer warrants that all information submitted during theregistration process is, and will thereafter remain, complete and accurate.Customer shall be responsible and liable for all activities that occur under orin the Account. Customer will require that all Users keep user ID and passwordinformation strictly confidential and not share such information with anyunauthorized person. Customer shall be fully responsible and liable for anybreach of this Agreement by a User. Customer must ensure that each Usercomplies with the terms of this Agreement. Any unauthorized access to oruse of the Service must be immediately reported to the Company.
1.3 Hosting.The Service is hosted by a third party hosting services provider selected byCompany (currently AWS) (”Hosting Provider”), and accordingly theavailability of the Service shall be in accordance with the Hosting Provider'sthen-current uptime commitments.
1.4 Third Party Integrations. Company may allow Customer to link, connect, use orintegrate with several workplace tools and other third-party software, files,components, integrations, and materials. All of the foregoing will be atCustomer’s sole risk and responsibility and solely and the applicablethird-party license agreement. Customer may allow Company to automaticallyretrieve data from Customer’s or its third-party systems or services forCustomer (“Integrations”). Customer hereby represents and warrants thatCustomer has the permission, authority, and rights for such Integrations andhereby grants Company permission for integrations where Customer linksCustomer’s or its third-party systems in its user account or through such toolsas Company may provide. Company disclaims any liability associated withproviding Integrations on Customer’s behalf. Customer hereby agrees that if itsrights and authority to allow Company automatic access to such system(s) lapses,Customer will immediately disable such integrations from within its useraccounts.
2. Support Services.
Company shall provide support andmaintenance services in accordance with Company's then current Service LevelAgreement (the “SLA”). The support and maintenance services may beperformed by Company Company's certified third party providers. Company shallbe responsible for such service providers' performance of the support andmaintenance services. The term "Subscription" shall includethe services provided under the SLA. Customer acknowledges and agrees thatCompany may from time to time, during the Subscription Term, develop bug fixesand/or patches (“Updates”), which may remotely and automatically updateand maintain the Service components (including if installed on Customer’spremises). In addition, Company may from time to time, during the SubscriptionTerm, develop enhancements, new releases, new Features, new versions of andother changes to the Service (collectively, “Upgrades”), which mayremotely and automatically upgrade the Service components (including ifinstalled on Customer’s premises). For clarity, such Updates and/or Upgrades donot include any generally-available (GA) release of the Service (typicallyincluding new Features, functionality and/or enhancements) that is subject tothe payment of separate fees.
3. Subscription Fees.
3.1 Subscription Fees. If Customer has purchased theSubscription directly from Company, this Section 4.1 shall apply.
Customer shall pay Company thesubscription fees and other related fee (if any) specified in the Order Form(the “Fees”).
3.2 General.Unless expressly stated otherwise in the Order Form: (a) all Fees are stated,and are to be paid, in U.S. Dollars; (b) all payments under this Agreement arewithout any right of set-off or cancellation; (c) all Fees are payable, andshall be invoiced, in advance, and shall be paid within thirty (30) days ofreceipt of invoice; and (d) any amount not paid when due will accrue intereston a daily basis until paid in full, at the lesser of the rate of one and ahalf percent (1.5%) per month and the highest amount permitted by applicablelaw.
3.3 Suspension. Company reserves the right to temporarily suspend provision ofthe Service: (a) if Customer is seven (7) days or more overdue on a payment;(b) if Company deems such suspension necessary as a result of Customer’s breachunder Section 5 (Subscription Restrictions); (c) if Companyreasonably determines suspension is necessary to avoid material harm to Companyor its other customers, including if the Service's cloud infrastructure isexperiencing denial of service attacks or other attacks or disruptions outsideof Company’s control, or (d) as required by law or at the request ofgovernmental entities.
3.4 Taxes.Amounts payable under this Agreement are exclusive of all applicable sales,use, consumption, VAT, GST, and other taxes, duties or governmental charges,except for taxes based upon Company's net income. In the event that Customer isrequired by any law applicable to it to withhold or deduct taxes for anypayment under this Agreement, then the amounts due to Company shall beincreased by the amount necessary so that Company receives and retains, freefrom liability for any deduction or withholding, an amount equal to the amountit would have received had Customer not made any such withholding or deduction.If a purchase order (or purchase order number) is required by Customer in orderfor an invoice to be paid, then Customer shall promptly provide such purchaseorder (or number) to Company.
3.5 IfCustomer purchased the Subscription via a Partner, the Subscription is subjectto the full payment of the applicable fees as set forth in the Partner OrderForm between Customer and the respective Partner. All payments shall be madedirectly to Partner, as agreed between Customer and Partner. If Customer isentitled to a refund under the terms and conditions of this Agreement, then,unless Company specifies otherwise, Company will refund any applicable fees tothe Partner, and the Partner alone will be responsible for refunding theappropriate amounts to Customer.
4. Subscription Restrictions. As a condition to the Subscription, andexcept as expressly permitted otherwise under this Agreement, Customer shallnot do (or permit or encourage to be done) any of the following Subscriptionrestrictions (in whole or in part): (a) copy, "frame" or"mirror" the Service; (b) sell, assign, transfer, lease, rent,sublicense, or otherwise distribute or make available the Service to any thirdparty (such as offering it as part of a time-sharing, outsourcing or servicebureau environment); (c) publicly perform, display or communicate the Service;(d) modify, alter, adapt, arrange, or translate the Service; (e) decompile,disassemble, decrypt, reverse engineer, extract, or otherwise attempt todiscover the source code or non-literal aspects (such as the underlyingstructure, sequence, organization, file formats, non-public APIs, ideas, oralgorithms) of, the Service; (f) remove, alter, or conceal any proprietaryrights notices displayed on or in the Service; (g) circumvent, disable orotherwise interfere with security-related or technical features or protocols ofthe Service; (h) make a derivative work of the Service, or use it to developany service or product that is the same as, competes with (or substantiallysimilar to) it; (i) store or transmit any robot, malware, Trojan horse,spyware, or similar malicious item intended (or that has the potential) todamage or disrupt the Service; or (j) take any action that imposes or mayimpose (as determined in Company’s reasonable discretion) an unreasonable ordisproportionately large load on the servers, network, bandwidth, or othercloud infrastructure which operate or support the Service, or otherwisesystematically abuse or disrupt the integrity of such servers, network,bandwidth, or infrastructure (collectively, the "SubscriptionRestrictions").
5. Personal Data. To the extent that Customer needs a data processing agreement("DPA"), Customer shall request Company to provide it withCompany's Data Processing Agreement and return it signed to Company asdescribed therein. The DPA, onceexecuted, shall be deemed as an Exhibit to this Agreement.
6. Mutual Warranties. Each Party represents and warrants that it is dulyorganized, validly existing and in good standing under the laws of itsjurisdiction of incorporation or organization; and that the execution andperformance of this Agreement will not conflict with other agreements to whichit is bound or violate applicable law.
7. Intellectual Property Rights.
7.1 Service.As between the Parties, Company is, and shall be, the sole and exclusive ownerof all intellectual property rights in and to: (a) the Service and all relatedsoftware and intellectual property; and (b) any and all improvements,derivative works, and/or modifications of/to the foregoing, regardless ofinventorship or authorship. Customer shall make, and hereby irrevocably makes,all assignments necessary or reasonably requested by Company to ensure and/orprovide Company the ownership rights set forth in this paragraph. Company shallbe entitled, from time to time, to modify and replace the Features (but notmaterial functionalities, unless it improves the material functionality) anduser interface of the Service. Nothing herein constitutes a waiver of Company’sintellectual property rights under any law.
7.2 Feedback. If Company receives any feedback (which may consist ofquestions, comments, suggestions or the like) regarding any of the Services(collectively, “Feedback”), all rights, including intellectual propertyrights in such Feedback shall belong exclusively to Company and such shall beconsidered Company's Confidential Information. Customer hereby irrevocably andunconditionally transfers and assigns to Company all intellectual propertyrights it has in such Feedback and waives any and all moral rights thatCustomer may have in respect thereto. It is further understood that use ofFeedback, if any, may be made by Company at its sole discretion, and thatCompany in no way shall be obliged to make use of the Feedback.
7.3 Analytic Information. Any anonymous information, derived from the use of theService (i.e., metadata, aggregated and/or analytics information and/orintelligence relating to the operation, support, and/or Customer’s use, of theService) which is not personally identifiable information and does not identifyCustomer (“Analytics Information”) may be used by Company to provide theService, for compliance with applicable laws, and for development and/orstatistical purposes. Analytics Information is Company's exclusive property.
7.4 Customer Data. Customer hereby grants Companyand its Affiliates a worldwide, non-exclusive, non-assignable (except asprovided herein), non-sublicensable (except to Company's subcontractors, ifapplicable), non-transferable right and license, to access and use the CustomerData, including without limitation for Company's provision of the Services andrelated services hereunder. As the exclusive owner of the Customer Data,Customer represents, warrants and covenants that Customer has received and/orobtained any and all required consents or permits and has acted in compliancewith any and all applicable laws, including, without limitation privacy laws,as to allow Company to receive, transfer and use the Customer Data solely inorder to perform the Service. Company may use or disclose the Customer Data:(a) to satisfy any applicable law, regulation, legal process, subpoena orgovernmental request; and/or (b) to collect, store, transfer, and/or processthe Customer Data through Company's Affiliates, third party service providersand vendors, as reasonably necessary to provide the Service. Company willmaintain commercially reasonable administrative, technical, and physicalsafeguards designed to protect the security, confidentiality, and integrity ofthe Customer Data.
8. Third Party Components. The Service may use or include third party open sourcesoftware, files, libraries or components, or other third party software(collectively, "Third Party SW"), that may be distributed toCustomer and are subject to third party license terms. A list of any ThirdParty SW and related licenses will be provided by Company upon request. Ifthere is a conflict between any third party license and the terms of thisAgreement, then the third party license terms shall prevail, but solely inconnection with the related third party software. Company makes no warranty orindemnity hereunder with respect to any third party software.
9. Confidentiality. “Confidential Information” meansany non public information disclosed by or on behalf of one Party (“Discloser”)to the other Party (“Recipient”) pursuant to this Agreement that ismarked as “confidential,” or in some other manner to indicate its confidentialnature or which is confidential by its nature. Confidential Information does notinclude any information which: (i) is or becomes generally known and availableto the public through no act of the Recipient; (ii) was already in theRecipient’s possession without a duty of confidentiality owed to the Discloserat the time of the Discloser’s disclosure; (iii) is lawfully obtained by theRecipient from a third party who has the express right to make such disclosure;or (iv) is independently developed by the Recipient without breach of anobligation owed to the Discloser. The Recipient may use the Discloser’sConfidential Information solely to perform its obligations under thisAgreement. Except as set forth in the immediately following sentence, theRecipient will not disclose the Discloser’s Confidential Information to anythird party except to its employees, consultants, affiliates, agents, andsubcontractors having a need to know such information to perform itsobligations under this Agreement who have signed a non-disclosure agreementwith the Recipient containing terms at least as protective of the Discloser’sConfidential Information as those contained herein. The Recipient may disclosethe Discloser’s Confidential Information to the extent that such disclosureis required by law or by the order of a court of similar judicial oradministrative body, provided that it notifies the Discloser of such requireddisclosure to enable Discloser to seek a protective order or otherwise toprevent or restrict such disclosure. All right, title, and interest in and to ConfidentialInformation are and will remain the sole and exclusive property of theDiscloser. The Recipient will use no less than commercially reasonable effortsto protect the Discloser’s Confidential Information from unauthorized access,use, or disclosure. Notwithstanding anything to the contrary in this Agreement,Company’s obligations with respect to the protection of Customer Data aresolely as set forth in Section 8.4 (Customer Data).
10. DISCLAIMER OF WARRANTIES. Company represents and warrants that, under normal,authorized use, the Service shall substantially perform in conformance with itsDocumentation. As Customer's sole and exclusive remedy and Company's soleliability for breach of this warranty, Company shall use commerciallyreasonable efforts to repair the Service. The warranty set forth herein shallnot apply if the failure of the Service results from or is otherwiseattributable to: (i) repair, maintenance or modification of the Service bypersons other than Company or its authorized contractors; (ii) accident,negligence, abuse or misuse of the Service; (iii) use of the Service other thanin accordance with the Documentation; or (iv) the combination of the Servicewith equipment or software not authorized or provided by Company. OTHER THAN ASEXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW,THE SERVICE AND THE RESULTS THEREOF ARE PROVIDED ON AN "AS IS" AND"AS AVAILABLE" BASIS. COMPANY DOES NOT WARRANT THAT: (i) THE SERVICEWILL MEET CUSTOMER'S REQUIREMENTS, OR OPERATE ERROR-FREE. EXCEPT AS SET FORTHIN SECTION 7 (MUTUAL WARRANTIES) AND THIS SECTION 11, COMPANYEXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY,SATISFACTORY QUALITY TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND FITNESS FORA PARTICULAR PURPOSE. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS,SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET ANDELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS ORCUSTOMER'S HOSTING SERVICES. COMPANY SHALL NOT BE RESPONSIBLE FOR ANYWARRANTIES AND REPRESENTATIONS MADE BY ANY PARTNER TO CUSTOMER.
11. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT,INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OFREVENUE, PROFITS, REPUTATION OR GOOD WILL, DATA, OR DATA USE, OR THE COST OFPROCURING ANY SUBSTITUTE GOODS OR SERVICES. WITHOUT DEROGATING FROM COMPANY'SINDEMNIFICATION OBLIGATION UNDER SECTION 13 AND EXCEPT FOR ANY DAMAGESRESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN,WILLFUL MISCONDUCT, AND/OR CUSTOMER'S MISAPPROPRIATION OR OTHERWISE VIOLATION OFCOMPANY'S INTELLECTUAL PROPERTY RIGHTS (INCLUDING VIOLATION OF THE SUBSCRIPTIONRESTRICTIONS BY CUSTOMER(: EITHER PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGESARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OROTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTSACTUALLY PAID OR PAYABLE TO COMPANY BY CUSTOMER IN THE TWELVE (12) MONTH PERIODIMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OFLIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS INTHIS SECTION DO NOT APPLY TO PAYMENTS DUE TO COMPANY UNDER THIS AGREEMENT(INCLUDING ITS EXHIBITS).
12. Indemnification.
12.1 Company agrees to defend and holdharmless, at its expense, any third party action or suit brought againstCustomer alleging that the Services, when used as permitted under thisAgreement, infringes intellectual property rights of a third party (“IPInfringement Claim”); and Company will pay any damagesfinally awarded by a court of competent jurisdiction against Customer that areattributable to any such IP Infringement Claim, provided that Customer (i)promptly notifies Company in writing of such claim; and (ii) grants Company thesole authority to handle the defense or settlement of any such claim andprovides Company with all reasonable information and assistance in connectiontherewith, at Company’s expense. Company will not be bound by any settlementthat Customer enters into without Company's prior written consent.
12.2 If the Service becomes, or inCompany's opinion is likely to become, the subject of an IP Infringement Claim,then Company may, at its sole discretion: (a) procure for Customer the right tocontinue using the Service; (b) replace or modify the Service to avoid the IPInfringement Claim; or (c) if options (a) and (b) cannot be accomplisheddespite Company's reasonable efforts, then Company may terminate the affectedOrder Form(s) upon written notice to Customer, and Customer shall be entitledto receive a pro-rated refund of any prepaid Subscription Fees under such OrderForm(s) based on the remaining period of the corresponding SubscriptionTerm(s).
12.3 Notwithstanding the foregoing,Company shall have no responsibility for IP Infringement Claims resulting fromor based on: (i) Company’s compliance with Customer’s instructions orspecifications; or (ii) the combination or use of the Services with equipment,devices or software not supplied by Company.
12.4ThisSection 13 states Company's entire liability, and Customer's exclusive remedy,for any IP Infringement Claim.
13. Term and Termination.
13.1Term.This Agreement commences on the Effective Date and, unless terminated inaccordance herewith, shall continue in full force and effect for the durationof the Subscription Term.
13.2Termination for Breach. Each Party may terminate this Agreement (and therespective Order Form or Partner Order) immediately upon written notice to theother Party if the other Party commits a material breach under this Agreementand, if curable, fails to cure that breach within sixty (60) days after receiptof written notice specifying the material breach (except that for paymentdefaults, such cure period will be seven (7) days).
13.3Termination for Bankruptcy. Each Party may terminate this Agreement(and the respective Order Form) upon written notice to the other Party upon theoccurrence of any of the following events in respect of such other Party: (a) areceiver is appointed for the other Party or its property, which appointment isnot dismissed within sixty (60) days; (b) the other Party makes a generalassignment for the benefit of its creditors; (c) the other Party commences, orhas commenced against it, proceedings under any bankruptcy, insolvency or debtor’srelief Law, which proceedings are not dismissed within sixty (60) days; or (d)the other Party is liquidating, dissolving or ceasing normal businessoperations.
13.4Effect of Termination; Survival. Upon termination of this Agreement forany reason: (a) the Subscription shall automatically terminate, (b) Customershall cease all access and use of the Services thereunder, and (c) Customershall (as directed) permanently erase and/or return all ConfidentialInformation of Company in Customer's possession or control. If purchaseddirectly from Company, following termination, all outstanding Fees and othercharges that accrued as of termination, shall become immediately due andpayable, and if necessary Company shall issue a final invoice therefor. Theprovisions of this Agreement that, by their nature and content, must survivethe termination of this Agreement in order to achieve the fundamental purposesof this Agreement (including limitation of liability) shall so survive.Termination shall not affect any rights and obligations accrued as of theeffective date of termination.
14. Miscellaneous.
14.1Entire Agreement. This Agreement, including the data processing agreement (ifapplicable), and any exhibits attached or referred hereto, represents theentire agreement between the Parties concerning the subject matter hereof,replaces all prior and contemporaneous oral or written understandings andstatements, and may be amended only by a written agreement executed by bothParties. Any terms and conditions (whether printed, linked to or otherwise),within any purchase order or related correspondence which that purport to modifyor supplement the terms and conditions of this Agreement (or the correspondingOrder Form), shall be void and of no effect.
14.2 No Waiver. The failure of either Party to enforceany rights granted hereunder or to take action against the other Party in theevent of any breach shall not be deemed a waiver by that Party as to subsequentenforcement or actions in the event of future breaches. Any waiver grantedhereunder must be in writing.
14.3 Severity. If any provision of this Agreement isheld by a court of competent jurisdiction to be illegal, invalid orunenforceable, the remaining provisions of this Agreement shall remain in fullforce and effect, and such provision shall be reformed only to the extentnecessary to make it enforceable.
14.4 Government Use. Any use of the Service by anagency, department, or other entity of the United States government shall begoverned solely by the terms of this Agreement.
14.5 No Third Parties. Except as stated otherwiseherein, this Agreement is for the sole benefit of the Parties hereto, andnothing herein, express or implied, shall give, or be construed to give, anyrights hereunder to any other person.
14.6 Assignment. Neither Party may assign its rights orobligations under this Agreement without the prior written consent of the otherParty, which consent may not be unreasonably withheld or delayed.Notwithstanding the foregoing, this Agreement may be assigned by either Partyin connection with a merger, consolidation, sale of all of the equity interestsof such Party, or a sale of all or substantially all of the assets of the Partyto which this Agreement relates. Without derogating from and subject to theabovementioned, this Agreement will bind and benefit each Party and itsrespective successors and assigns.
14.7 Governing Law; Arbitration. This Agreement shall be governedby and construed in accordance with the laws of the State of New York withoutregard to principles of conflicts of law. All disputes arising out of or inconnection with this Agreement shall be finally and exclusively settled underthe Rules of Arbitration of the International Chamber of Commerce by onearbitrator appointed in accordance with the said Rules. The place ofarbitration shall be New York, New York. The language of the arbitration shallbe English. Notwithstanding the foregoing, each Party may also seek interimrelief in any court of competent jurisdiction in order to protect itsproprietary rights. The law governing this arbitration agreement shall be thegoverning law set forth above. Each Party irrevocably waives its right to trialof any issue by jury.
14.8 Amendments. No modifications to this Agreement can bemade except in writing, signed by the Customer and Company.
14.9 No Agency. This Agreement does not, and shall not beconstrued to, create any relationship, partnership, joint venture,employer-employee, agency, or franchisor-franchisee relationship between theParties. Neither Party has any authority to enter into agreements of any kindon behalf of the other Party.
14.10 Force Majeure. Company will not be liable for any delay or failure to providethe Services resulting from circumstances or causes beyond the reasonablecontrol of Company, including, but not limited to on account of strikes,shortages, riots, insurrection, fires, flood, storms, explosions, acts of God,war, government or quasi-governmental authorities actions, riot, acts ofterrorism, earthquakes, explosions, power outages, pandemic or epidemic (orsimilar regional health crisis), or any other cause that is beyond the reasonablecontrol of Company.
14.11 Notices.Notices to either Party shall be deemed given (a) four (4) business days afterbeing mailed by airmail, postage prepaid, (b) the same business day, ifdispatched by facsimile or electronic mail before 13:00 hour (local time forthe receiving Party) and sender receives acknowledgment of receipt, or (c) thenext business day, if dispatched by facsimile or electronic mail after the hour13:00 (local time for the receiving Party) and sender receives acknowledgmentof receipt.
* ** * *
