SOFTWARE AS A SERVICE (“SAAS”) AGREEMENT
PLEASE READ THIS AGREEMENT BEFORE USING DIGIMANUALS SOFTWARE OR SERVICES. BY ACCESSING OR USING DIGIMANUALS SOFTWARE OR SERVICES, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE DIGIMANUALS SOFTWARE OR SERVICES. USE OF DIGIMANUALS SOFTWARE AND SERVICES IS LIMITED TO INDIVIDUALS AND ENTITIES THAT CAN FORM LEGALLY-BINDING CONTRACTS UNDER APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, DIGIMANUALS’ SOFTWARE AND SERVICES ARE NOT AVAILABLE TO MINORS.
This Software as a Service Agreement (the “Agreement”) is entered into between Sander Resources, L.L.C., a Texas limited liability company with its principal place of business in Austin, Texas (“Sander”), the sole and exclusive owner of the DigiManuals software and associated services, and you (the “Customer”). Customer and Sander may each be referred to as a “Party” and collectively as “Parties.”
1.1 “Affiliate” means a person or entity that owns, is owned by, or is under common control with a Party, and “control” in this definition means that a person or entity owns more than 50% of the equity interest of any entity and/or has the ability to control the management of such entity.
1.2 “Authorization Form” means the Services selected by you via a document issued by Sander and executed or otherwise agreed upon by authorized representatives of the Customer which specifies, among other things and as applicable, a description of the Services, the Term, the Fees and any other details specifically related to the Services.
1.3 “Authorized Users” means individuals who are authorized by Customer to use the Platform and Services with varying levels of control and access specified by Customer and who have been supplied user identifications and passwords by Customer. Authorized Users may include the employees, consultants, contractors, agents, or other designees of Customer and its Affiliates, but shall not include any employee or agent of any Sander or DigiManuals competitor.
1.4 “Customer Information” means all information and data submitted to Sander by or on behalf of Customer in connection with the creation and management of Customer’s account for the Services, including by Authorized Users.
1.5 “Platform” means the DigiManuals proprietary “Software as a Service” (defined herein) that enables the entry, display, and management of Customer Information.
1.6 “Services” means access to the Platform and services, via a customer account, that are ordered by and paid for by Customer under an Authorization Form and made available by Sander, including user guides, documentation, and help/training materials provided by Sander, but expressly excluding any “Third-Party Supported Platform(s)” (as defined herein).
1.7 “Service Start Date” means, for each Authorization Form, the earlier of: (i) the date set forth on the Authorization Form; or (ii) the first date on which Customer is granted access to the Services purchased pursuant to the Authorization Form.
1.8 “Software as a Service” or “SaaS” means a software delivery model in which a software platform is made available online via a subscription, rather than purchased and installed on individual computers.
1.9 “Third-Party Supported Platform(s)” means the third-party SaaS vendors supported by the Platform and Services, subject to change.
2. DIGIMANUAL SERVICES
2.1 Services. During the Term (as defined herein), subject to the terms and conditions of this Agreement for such Services, and solely for Customer’s internal business and non-commercial purposes, Sander shall make the Services available to Customer in accordance with an executed Authorization Form.
2.2 Updates and Functionalities. Customer acknowledges that, from time to time, Sander may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of such Platform and Services (including the addition, modification, or removal of functionality). Excluding the addition of new products and features for which Sander may charge Customer additional fees, Sander will provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services. Customer acknowledges that the Platform and Services may interoperate with several Third-Party Supported Platforms, and that the Platform and Services are highly dependent on the availability of such Third-Party Supported Platforms. If at any time any Third-Party Supported Platforms cease to make their features or programs available to Sander on reasonable terms, Sander may cease to provide access to such features or programs to Customer without entitling Customer to refund, credit, or other compensation. In no way is Sander required to customize its Services for Customer, and Sander does not represent or warrant that its Platform or Services will be compatible with Customer’s systems.
2.3 Acceptable Use Policy.
(i) be responsible for Authorized Users’ compliance with this Agreement;
(ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform or Services, including keeping passwords and user names confidential and not permitting any third party to access or use its or any of its Authorized Users’ user names, passwords, or Customer account for the Services;
(iii) be solely responsible and liable for all activity conducted through its Customer account in connection with the Services;
(iv) promptly notify Sander if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s (or any Authorized User’s) user name, password, or Customer account;
(v) use, or otherwise access in connection with Customer’s use thereof, the Services only in accordance with applicable laws, including without limitation, those related to the collection of health data or information, and government regulations; and
(vi) comply in all respects with all applicable terms of the Third-Party Supported Platforms that it accesses or to which is subscribes.
Customer shall not:
(vii) make the Platform or Services available to anyone other than its Authorized Users;
(viii) sell, trade, or otherwise transfer the Platform or Services to another party;
(ix) use the Services to store or transmit any content that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law;
(x) upload to, or transmit from, the Platform or Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component;
(xi) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Platform or Services (including any mechanism used to restrict or control the functionality of the Platform or Services), any third-party use of the Platform or Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);
(xii) attempt to gain unauthorized access to the Platform or Services, the Supported Platforms, or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Platform, Services, or the Third-Party Supported Platforms;
(xiii) access the Platform or Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Platform, Services, or the Third-Party Supported Platforms; or
(xiv) authorize, permit, or encourage any third party to do any of the above.
Customer agrees that Sander may temporarily suspend or terminate its access to the Platform or Services for a violation of this Section, or for any abusive practices that degrade the performance of any Service for Customer and/or other Sander customers.
2.4 Third-Party Supported Platforms and Services. Customer’s use of Third-Party Supported Platforms and other third parties via third-party websites, platforms, or applications (collectively, the “Third-Party Services”) is governed solely by the terms and conditions of such Third-Party Services (and Customer shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between Customer and the relevant third party, and not Sander. Sander makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any contract entered into and any transactions completed and any contract entered into by Customer with any such third party. Further, Customer acknowledges and agrees that, if Customer installs or enables a Third-Party Service, Customer grants Sander permission to allow the provider of such Third-Party Service to access its Customer Information to the extent required for the interoperation of the Third-Party Service with the Services or as Customer may otherwise authorize or direct.
2.5 Non-Exclusivity. Customer acknowledges that the rights granted to it under this Agreement and any Authorization Form are non-exclusive and that nothing in this Agreement or any Authorization Form will be interpreted or construed to prohibit or in any way restrict Sander’s right to license, sell, or otherwise make available the Platform or Services to any third party or perform any services for any third party.
3. INTELLECTUAL PROPERTY
3.1 Platform and Services. As between Customer and Sander, Sander retains all right, title, and interest in and to the Platform and Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of Sander’s rights or interests therein or any other Sander intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by Sander.
3.2 Feedback. Customer may from time to time provide suggestions, comments, or other feedback to Sander with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer and, notwithstanding Section 5 of this Agreement, shall not create any confidentiality obligation for Sander. Customer shall, and hereby does, grant to Sander a non-exclusive, worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
3.3 Customer Information. Customer hereby grants Sander a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.1) license, with right of sub-license, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, index the Customer’s Information for the purpose of providing and developing the Platform and Services to Customer and supporting Customer’s use of the Platform and Services. Subject only to the limited license expressly granted herein, Customer and its Authorized Users shall retain all right, title and interest in and to, and all intellectual property rights in, the Customer Information. Nothing in this Agreement will confer on Sander any right of ownership or interest in or to, or the intellectual property rights in the Customer Information.
4. FEES AND PAYMENT
4.1 Fees. Customer will pay all fees as and when described in the Authorization Form (the “Fees”). Unless otherwise stated on the Authorization Form, all Fees shall be payable upon presentation and prior to any commencement of Services. Any disputed amounts shall not affect payment of nondisputed amounts. Customer shall make payments to Sander via the entity and address set forth in the Authorization Form and any subsequent invoice, either via check, credit card, wire, or automated clearing house (“ACH”).
4.2 Auto-Renewal. Customer agrees and authorizes Sander to issue an annual recurring charge, including via Customer’s credit card or other provided form of payment, for Customer’s utilization of the Platform and Services absent termination consistent with Section 6.
4.3 Late Payment. If any amounts invoiced hereunder as Fees or otherwise are not received by Sander by the due date, then at Sander’s discretion, such charges may accrue interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 30 days' written notice to Customer provided after the due date, Sander may suspend Customer’s access to the Services, if any, if Sander has not received the amounts invoiced hereunder at the expiration of such 30-day period.
4.4 Taxes and Withholding. Customer is responsible for paying all taxes, assessments, charges, fees, and levies that may be based upon Customer’s subscription to the Services, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority. If Sander has the legal obligation to pay or collect such taxes, assessments, charges, fees, and levies for which Customer is responsible under this Section, the appropriate amount shall be invoiced to, and paid by, Customer unless Customer provides Sander with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. CONFIDENTIAL INFORMATION AND SECURITY REQUIREMENTS
5.1 Confidential Information. Each Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care consistent with industry standards) to protect the Confidential Information (as defined below) of the other party, and will not disclose or use any such Confidential Information for any purpose outside of the scope of this Agreement, and each Party shall limit access to Confidential Information to those of its, or its Affiliates’, employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving Party containing protections no less stringent than those herein. In this Agreement, “Confidential Information” means all information, data, and financial information relating to the business, commercial strategies, pricing, personnel, customers, products, or services of each Party. Confidential Information includes: (i) each party’s proprietary system offerings, including the Platform and/or Services, along with documentation and plans related thereto; (ii) passwords, authorization keys, or codes use to access or operate such system offerings; (iii) any results or statistics collected through use of the system offerings; or (iv) any business information that is either marked physically or identified orally as “confidential” or “proprietary.” Confidential Information excludes any information that (v) was lawfully in the receiving party’s possession before receiving it from the disclosing party; (vi) is provided in good faith to the receiving party by a third party without restriction on use or disclosure and without breaching any rights of the disclosing party; (vii) is or becomes generally known or available to, or accessible by, the public through no act or omission of the receiving party; or (viii) was or is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. In the event that the receiving party or any representative of the receiving party becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the receiving party will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.
5.2 Security Requirements. Sander has implemented technical and organizational security measures consistent with the prevailing industry standards. However, Sander cannot guarantee that unauthorized third parties will never be able to defeat those measures and expressly denies any responsibility for damages, monetary or otherwise, resulting from unauthorized third party access to Customer’s account or use, alteration, or disclosure of the Customer Information or Usage Data.
6. TERM AND TERMINATION
6.1 Term of Agreement. This Agreement shall commence on the date of the last signature hereto and shall continue in effect until all Authorization Forms have expired or this Agreement has been terminated in accordance with this Section 6 (the “Term”).
6.2 Term of Authorization Forms. The term of each Authorization Form shall start on the Service Start Date specified on the applicable Authorization Form and shall continue for the term specified therein. Except as expressly stated otherwise in an Authorization Form, all Authorization Forms shall automatically renew for subsequent renewal periods, unless a Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the then-current term. Sander agrees that it will not increase the Fees for Services for a period of 24 months from the Effective Date; however, this shall not apply to any new products and features that may be introduced during that period or thereafter. Thereafter, upon renewal, Sander reserves the right to increase the Fees for Services by providing Customer written notice thereof (which notice may be provided by email) at least 60 days prior to the end of the then-current term.
6.3 Termination for Cause. A Party may terminate this Agreement for cause: (i) upon 30 days' written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. No refund shall be issued in the event of a termination for cause by Sander.
6.4 Termination for Convenience. Sander may terminate this Agreement for convenience upon 30 days’ written notice to Customer. In the event of termination for convenience, Sander will issue the Customer a pro-rata refund of Fees paid for Services not rendered.
6.5 Effects of Termination. Upon termination of this Agreement for any reason, all Authorization Forms will automatically terminate and: (i) Customer will immediately cease all use of the Services; (ii) Customer will have no further access to its Customer account provided by Sander; and (iii) Customer will pay Sander all unpaid Fees owing to Sander. If Customer terminates this Agreement in accordance with Section 6.3, Sander will refund to Customer any unearned Fees that Customer paid in advance for the Services. If Sander terminates this Agreement in accordance with Section 6.3, then, without limiting any other remedies that may be available, Customer will pay any unpaid Fees covering the remainder of the term of each Authorization Form after the date of termination. In no event will termination relieve Customer of its obligation to pay any amounts and Fees payable to Sander for the period prior to the date of termination and other obligations that survive termination of this Agreement.
6.6 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive, and such other provisions that expressly or by their nature are intended to survive termination shall survive the expiration or termination of this Agreement. Without limiting the foregoing, Section 4.1 as well as Sections 3, 5, and 7-10 shall survive the expiration or termination of this Agreement.
7. WARRANTIES AND WARRANTY DISCLAIMER
7.1 Mutual Warranties. Sander and Customer each represent and warrant that they have the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement and that doing so is not in conflict with any other agreement.
7.2 Sander Warranties. Sander warrants that: (i) subject to Section 2.2, the Services will materially perform in accordance with the applicable documentation and the functionality of the Services will not be materially decreased during the term of the applicable Authorization Form; and (ii) the Services do not knowingly contain any malicious code or viruses. For any breach of an above warranty, Customer’s exclusive remedies are those described in Section 6.3 with the maximum amount of Sander’s liability as set forth in Section 9.
7.3 Disclaimer. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND, AS A RESULT, THE CONTENTS OF THIS SECTION MAY NOT APPLY TO CUSTOMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, SANDER EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SANDER SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, SANDER DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SANDER OR ELSEWHERE NOR ANY COURSE OF DEALING WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
SANDER DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING CUSTOMER INFORMATION, AUTHORIZED USER INFORMATION, OR DETERMINATIONS VIA THE PLATFORM AND SERVICE AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. SANDER DOES NOT CONTROL OR VET CUSTOMER INFORMATION OR AUTHORIZED USER INFORMATION AND IS NOT RESPONSIBLE FOR WHAT CUSTOMERS OR AUTHORIZED USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. SANDER IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SUPPORTED PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SUPPORTED PLATFORMS. SANDER EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR THE INFORMATION CONTAINED THEREIN AS WELL AS YOUR CUSTOMER ACCOUNT AND CUSTOMER INFORMATION.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification by Sander. Subject to Customer’s compliance with Section 8.3 and to the maximum amount as set forth in Article 9, Sander shall defend Customer from and against any and all third-party claims that the use of the Services as permitted hereunder infringes a valid intellectual property right (a “Claim”) and shall indemnify Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Customer in connection with any such Claim.
Sander will have no liability for any Claim to the extent it arises from:
(i) a modification of the Platform or Services by or at the direction of Customer or an Authorized User;
(ii) use of the Platform or Services in violation of this Agreement or applicable law;
(iii) use of the Platform or Services after Sander notifies Customer to discontinue use because of an infringement or misappropriation claim;
(iv) the combination, operation, or use of the Platform or Services with any other software, program, or device not provided or specified by Sander to the extent such infringement would not have arisen but for such combination, operation, or use; or
(v) Customer’s use of the Platform or Services in a manner that is inconsistent with its intended use.
For avoidance of doubt, Sander’s indemnification obligations in this Section will not apply to Third-Party Supported Platforms accessed through the Platform or Services and/or Usage Data.
If a Service has become, or in Sanders’s opinion is likely to become, the subject of any such Claim, Sander may at its option and expense:
(vi) procure for Customer the right to continue using the Service as set forth hereunder;
(vii) replace or modify the Service or certain functionalities to make it non-infringing; or
(viii) if options (vi) or (vii) are not reasonably practicable, terminate either this Agreement or the Authorization Form for such Service.
This Section sets forth Sander’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third party rights.
8.2 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Sander, its Affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a claim: (i) alleging that Customer’s or Authorized User’s use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates any applicable law; (ii) relating to, or arising from, Customer Information or Customer’s breach of Section 2.3 or Section 7.1; (iii) relating to, or arising from, Customer’s use of any Third-Party Supported Platforms (including Customer’s breach of any terms or conditions applicable to any Third-Party Supported Platforms); or (iv) relating to, or arising from, any claim by an Authorized User or third party based upon information provided by an Authorized User.
8.3 Indemnification Procedure. The indemnified Party shall: (i) promptly give written notice of the claim to the indemnifying Party; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim without the indemnified Party’s prior written consent unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party with reasonable cooperation and assistance at the indemnifying Party’s expense.
9. LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL SANDER'S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE, AS PRO-RATED BASED UPON THE FEES FOR THE THEN CURRENT TERM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SANDER, ITS MANAGING MEMBERS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL SANDER BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF SANDER WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF SANDER FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF SANDER, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF SANDER OR ITS EMPLOYEES; OR (III) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
CUSTOMER AGREES THAT CUSTOMER WILL ONLY BE ABLE TO PURSUE CLAIMS AGAINST SANDER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. CUSTOMER FURTHER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF SANDER’S SERVICES MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
10.1 Assignment. Neither Party may assign nor otherwise transfer any of its rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, Sander may assign this Agreement in its entirety (including all Authorization Forms), without consent of Customer, in connection with a sale of all or any part of the DigiManuals intellectual property.
10.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect.
10.3 Force Majeure. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemic, endemic, health advisory or public health issues; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
10.4 Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or interference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
10.5 Amendment. No amendment, supplement, restatement, or termination of any provision of this Agreement shall be valid unless it is in writing and signed by each Party to this Agreement at the time of the amendment, supplement, restatement, or termination.
10.6 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
10.7 Notices. For purposes of service messages and notices about the Services, Sander may use the Platform to place a banner notice across the Services or website to alert Customer. Alternatively, notice may consist of an email from Sander to an email address associated with Customer’s account, even if Sander has other contact information. For communication about Customer’s account and services associated with Sander, Sander may contact Customer or its Authorized Users through its Customer account or through other means including email, text, telephone, or delivery services such as the postal service. Customer acknowledges and agrees that Sander shall have no liability associated with or arising from Customer’s failure to maintain accurate contact or other information, including, but not limited to, Customer’s failure to receive critical information about the Services. Notices to Sander must be delivered via registered mail to the following address: Sander Resources, L.L.C., P.O. Box 2478, Austin, Texas 78768-9912; Attention: Legal. This contact information provided may be updated by giving notice in accordance with this Section.
10.8 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement, except that any provision that does not give rights or benefits to particular Parties may be waived in writing, signed only by those Parties who have rights under, or hold the benefit of, the provision being waived if those Parties promptly send a copy of the executed waiver to all other Parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
10.9 Governing Law, Jurisdiction and Venue. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the State of Texas. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Travis County, Texas, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Travis County, Texas, such personal jurisdiction shall be nonexclusive.
10.10 Binding Arbitration. It is the intention of the Parties to use their reasonable best efforts to informally resolve, where possible, any dispute, claim, demand or controversy arising out of the performance of this Agreement by mutual negotiation and cooperation in good faith for a period of which shall be no less than five (5) business days from first notice of any such dispute. In the event the Parties are unable to informally resolve any such dispute, including relating to this Agreement, the Parties agree to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement and any disputes upon termination of the relationship, including claims for violation of any local, state or federal law, statute, regulation, ordinance or common law. In that regard, the Parties agree that, notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, the terms of this Agreement shall be subject to the Federal Arbitration Act (9 U.S.C., §§ 1-16). The arbitration will be conducted in Travis County, Texas, by a single neutral arbitrator and in accordance with the expedited procedures of the American Arbitration Association’s then current Commercial Arbitration Rules. The arbitrator shall have the power, and only such power, to enter any award that could be entered by a judge of the trial court of the State of Texas, and shall follow the law in so doing. In the event the arbitrator does not follow the law, it is agreed by the Parties that the arbitrator will have exceeded the scope of his or her authority and the Parties may, at their option, file a motion to vacate the award in court. The Parties agree to abide by and perform any award rendered by the arbitrator. Judgment on the award may be entered in any court having jurisdiction thereof. The prevailing Party shall be entitled to costs and attorneys’ fees.