THIS AGILLITICS SERVICES AGREEMENT

THIS AGILLITICS SERVICES AGREEMENT (“AGREEMENT”) IS ENTERED INTO BY CUSTOMER AND AGILLITICS LLC (“AGILLITICS”) AND GOVERNS THE CUSTOMER’S USERS USE OF THE AGILLITICS APPLICATION FOR SUPPLY CHAIN MANAGEMENT. CUSTOMER’S EXECUTION OF AN ORDER FORM THAT REFERENCES THIS AGREEMENT CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. SIGNATORY OF THE ORDER FORM ON BEHALF OF CUSTOMER REPRESENTS THAT SUCH PERSON HAS THE AUTHORITY TO BIND CUSTOMER, ITS AFFILIATES AND USERS TO THESE TERMS AND CONDITIONS. THIS AGREEMENT IS EFFECTIVE BETWEEN CUSTOMER AND AGILLITICS  AS OF THE EFFECTIVE DATE OF THE ORDER FORM.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

 

  1.  The terms defined below and throughout the Agreement shall have the following meanings:

 

Affiliate” means any entity, which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Agreement” means this document and its corresponding Order Form(s), any exhibits and/or addenda.

Customer” or “Customers” means the company or other legal entity which accepts this Agreement.

Customer Data” is defined in Section 5 below.

“AGILLITICS Aggregated Data” means all aggregated and anonymized data and information collected and compiled and related to Customer and its Users’ use of the Services, including without limitation,  statistical and performance data related to the operation of the Services, as further described in Section 5 of this Agreement.

AGILLITICS Services” or “Services” mean the AGILLITICS application and the process by which data are captured, analyzed and communicated to  Users.

“Device” or “Devices” means the hardware to which AGILLITICS application is downloaded and used in conjunction with the number authorized on the Order Form and under terms and conditions of this Agreement.  

“Fees” are the fees for the Services as described in an Order Form and are payable as stated in the Order Form and in this Agreement.

Order Form” means the document for placing orders hereunder that are entered into between Customer and AGILLITICS from time to time, including, addenda and supplements thereto which shall be incorporated by reference. The Order Form will state the number of authorized Users, the Subscription Term and the Fees and such other information agreed upon by the Parties.  By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were Customer, the original party hereto. Order Forms shall be deemed incorporated herein by reference.

Subscription Term” means the time period for which Customer and its Users will have access to the Services as described in the Order Form.  Continuation of use of the Services upon expiration of the Subscription Term will require execution of a new Order Form and the payment of additional Fees.

User” or “Users” means with respect to Customer, Customers employees, consultants, contractors, and agents who register and receive identifications and passwords to access and utilize the Services.  Customers number of authorized Users is limited as stated in the Order Form.   

 

 

  1. SERVICES

2.1. Grant of License & Provision of Services. AGILLITICS grants Customer a limited license and right to access, download and use the Services solely by the number of authorized Users stated on the Order Form and as registered to each authorized User of Customer, for the Subscription Term, subject to the payment of the Fees.   No other rights whatsoever are provided to Customer under this Agreement or otherwise; AGILLITICS reserves all rights not expressly granted hereunder.

2.2. Additional or New Services.  AGILLITICS may advise Customer from time to time of new functionality for the Services and the Services, products, modules & applications, and Customer may request additional or new services from AGILLITICS (collectively, “New Services”).  All New Services shall be subject to completion and execution of a new Order Form and Agreement and may incur additional Fees.9

  1. USE OF THE SERVICES AND SERVICES

3.1. AGILLITICS Responsibilities. AGILLITICS will: (i) provide basic support for the Services to Customer at no additional charge; (ii) use commercially reasonable efforts to make the Services available seven (7) days a week, 24 hours per day and technical support for the Services available 8 AM EST – 6 PM MT 5 days a week, except for: (a) planned downtime (of which AGILLITICS shall use reasonable commercial efforts to provide Customer with advance notice thereof), or (b) any unavailability caused by circumstances beyond AGILLITICS’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving AGILLITICS employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Services only in accordance with applicable laws and government regulations.

3.2. Customers Responsibilities. Customer shall (i) be responsible for all uses of the Services, directly or indirectly, and each User’s compliance with this Agreement, (ii) take all commercially reasonable efforts to make its Users aware of the provisions of this Agreement and will use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify AGILLITICS promptly of any such unauthorized access or use, and (iii) use (and cause its Users to use) the Services only in accordance with the Services Terms of Use www.agillitics.com/terms and Privacy Policy www.agillitics.com/privacy, this Agreement and applicable laws and government regulations, including but not limited to the applicable privacy laws and regulations. Customer shall not (a) make the Services available to anyone other than Customers Users which are registered with AGILLITICS, (b) sell, resell, rent, or lease the Services, in whole or part, including without limitation,  Anonymized Data, (c) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (d) attempt to gain unauthorized access to the Services or their related systems or networks.  

3.3. AGILLITICS Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, which is based upon Customers own operating system, it’s Users’ Devices and related services.  

 

  1. FEES AND PAYMENT FOR SERVICES

4.1. Fees. Customer shall pay all Fees specified in all Order Forms executed with AGILLITICS. Except as otherwise specified herein or in an Order Form, (i) Fees are based on Services purchased and not actual usage, and (ii) payment obligations are non-cancelable and Fees paid are non-refundable.

4.2. Invoicing and Payment. All charges for Services shall be paid as stated in the Order Form. AGILLITICS will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to AGILLITICS and notifying AGILLITICS of any changes to such information.

4.3. Overdue Charges. If any charges are not received from Customer by the due date, then at AGILLITICS discretion,  such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

4.4. Suspension of use of Services and Service and Acceleration. If any amount owing by Customer under this or any other agreement for AGILLITICS services is 30 or more days overdue, AGILLITICS may, without limiting AGILLITICS other rights and remedies, accelerate Customers unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend use of the Services and Services to Customer and its Users until such amounts are paid in full. AGILLITICS will give Customer at least 7 days’ prior notice that Customers account is overdue, in accordance with Section 11.2 (Manner of Giving Notice), before suspending Services to Customer.

4.5. Payment Disputes. AGILLITICS will not exercise AGILLITICS rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if Customer is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute, provided that all charges not in dispute are paid and, if not paid, remain subject to Sections 4.3 and 4.4.

4.6.  Consulting Services and Expenses.  In the event Customer request AGILLITICS to provide Customer with training or other consulting services outside the Services described on an Order Form, such Consulting Services shall be at AGILLITICS’s then current services rates and shall be specified in an Order Form for such purposes (each, a “Services Order Form”).  Customer shall reimburse AGILLITICS for all out-of-pocket (including travel and living) expenses incurred by AGILLITICS in performing AGILLITICS obligations to Customer under an Order Form and/or Services Order Form for which AGILLITICS shall invoice Customer.  All payment obligations for such services and expenses shall be as stated in this Section 4.  

4.7. Taxes. Unless otherwise stated, AGILLITICS fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If AGILLITICS has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides AGILLITICS with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, AGILLITICS is solely responsible for taxes assessable against it based on AGILLITICS income, property, and employees.

 

  1. PROPRIETARY RIGHTS

5.1. Reservation of Rights.  Customer acknowledges and agrees that AGILLITICS is the owner of all right, title and interest in and to all worldwide intellectual property in, arising from and related to the Services and the AGILLITICS Confidential Information (as defined in Section 6 below), as well as all enhancements, updates, upgrades, modifications, and versions to any of them (the “AGILLITICS IP”). No rights are granted to Customer or any User under this Agreement other than as expressly stated herein.  Any alterations of the Services performed for Customer, if any, shall be owned solely by AGILLITICS.  

5.2. Customer Data.  Data produced by Customer both before and after the Effective Date captured by AGILLITICS as a result of the use of the of the Services (“Customer Data”) shall be the property of Customer and Customer is the owner of all right, title and interest in and to all worldwide intellectual property in, arising from and related to the Customer Data.  

5.3. Customer Aggregated Data. Customer acknowledges and agrees that AGILLITICS may monitor Customers use of the Services and collect, and compile data and information related to Customer’s use thereof that is used by AGILLITICS in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Customer Aggregated Data“). As between AGILLITICS and Customer, all right, title, and interest in Customer Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by AGILLITICS, it being understood and acknowledged that all Customer Data and will be deemed Customer IP for all purposes under this Agreement. Customer agrees that AGILLITICS may (i) make all Aggregated Data publicly available, in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law; provided that such Aggregated Data does not identify Customer or Customer’s Proprietary Information.

5.4. Restrictions. Neither Customer nor its Users shall (nor will any of them permit a third party to)  (i) permit any unauthorized access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services and/or Services, (iii) copy, frame or mirror any part or content of the Services, (iv) reverse engineer the Services or related Services, or (v) access the Services in order to (a) build a competitive product or service,  (b) copy any features, functions or graphics of the Services or attempt to enable the Services to interoperate with any third party products or services, except as may be permitted under law.

5.5. Suggestions. AGILLITICS shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services and/or Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer and/or its Users, relating to the operation of the Services and the Services.  

 

  1. CONFIDENTIALITY

6.1. Definition of Proprietary Information. As used herein, “Confidential Information” means all nonpublic proprietary information other than Trade Secrets (defined below), of value to its owner, as well as any data or information defined as a Trade Secret, but which is determined by a court of competent jurisdiction to not be a trade secret under applicable law.  AGILLITICS Confidential Information shall include the Services, Services and AGILLITICS Aggregated Data; the Customer Data shall be Customer Confidential Information; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms.  “Trade Secrets” means information, including the source code and human readable code of the Services, business processes, product plans and designs and technology and technical information which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.  Collectively, hereinafter “Confidential Information” and “Trade Secrets” is referred to as “Proprietary Information.”  Proprietary Information, which is disclosed by a party hereunder to the other party, whether orally or in writing, which is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  However, Proprietary Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without direct or indirect use of the Proprietary Information.

6.2. Protection of Proprietary Information. Each party agrees with the other  (i) to hold the Proprietary Information in the strictest confidence, (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information to any third party, subject to the provisions of subsection (iv) below, (iii) not to make use of the Proprietary Information other than for the permitted purposes under of this Agreement, and (iv) to disclose the Proprietary Information only to their respective representatives requiring such material for effective for performance of this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement.  Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior consent.  Each party hereto shall institute internal operating procedures to assure limited access and use of Proprietary Information consistent with this Agreement and shall exercise due care to monitor and ensure compliance with this Agreement.  The nondisclosure and confidentiality obligations set forth in this Section 6 shall survive termination of this Agreement for any reason and shall remain in effect with respect to Trade Secrets for as long as the owner of such information is entitled to protection thereof and with respect to Confidential Information for a period of five (5) years after termination hereof.

6.3. Compelled Disclosure. A party receiving Proprietary Information (“Receiving Party”) may disclose Proprietary Information of the disclosing party (“Disclosing Party”) if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Proprietary Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Proprietary Information.

  1. WARRANTIES AND DISCLAIMERS

7.1. AGILLITICS Warranties. AGILLITICS represents and warrants that it (i) has sufficient expertise, training, and experience to satisfactorily accomplish the Services hereunder and the Services will be performed in a professional and workmanlike manner, and (ii) AGILLITICS has validly entered into this Agreement and has the legal power to do so.  

7.2. Customer Warranties & Acknowledgements. Customer warrants that it has validly entered into this Agreement and has the legal power to do so and will ensure its Users comply with the terms and conditions hereof.  

7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  THE SERVICES AND SERVICES ARE PROVIDED “AS IS” AND “WHERE IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ON INFRINGEMENT.  

 

 

  1. MUTUAL INDEMNIFICATION

8.1. Indemnification by AGILLITICS. AGILLITICS shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer or its’ Users (the “Customer Indemnified Parties”) by a third party alleging that the use of the Services as delivered hereunder infringes or misappropriates the intellectual property rights of a third party (a “Third Party Claim”), and shall indemnify the Customer Indemnified Parties for any damages, attorney fees and costs finally awarded against Customer Indemnified Parties as a result of, and for amounts paid by Customer Indemnified Parties under a court-approved settlement of, a Third Party Claim; provided that Customer Indemnified Parties (a) promptly give AGILLITICS written notice of the Third Party Claim; (b) give AGILLITICS sole control of the defense and settlement of the Third Party Claim  (provided that AGILLITICS may not settle any Third Party Claim unless the settlement unconditionally releases Customer Indemnified Parties of all liability); and (c) provide to AGILLITICS all reasonable assistance, at AGILLITICS expense. In the event of a Third Party Claim, or if AGILLITICS reasonably believe the Services may infringe or misappropriate a third party intellectual property right, AGILLITICS may in AGILLITICS discretion and at no cost to Customer Indemnified Parties (i) modify the Services so that it no longer infringes or misappropriates, without breaching AGILLITICS warranties under “AGILLITICS Warranties” above, or (ii) obtain a license for Customers continued use of the Services in accordance with this Agreement and the Order Form.

8.2. Indemnification by Customer. Customer and its Affiliates shall defend AGILLITICS against any claim, demand, suit or proceeding made or brought against AGILLITICS or its Affiliates (the “AGILLITICS Indemnified Parties”) by a third party alleging that Customers use (or any of Customers Users’ use) of the Services and/or Services, in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against AGILLITICS”), and shall indemnify the AGILLITICS Indemnified Parties for any damages, attorney fees and costs finally awarded against AGILLITICS Indemnified Parties as a result of, or for any amounts paid by AGILLITICS Indemnified Parties under a court-approved settlement of, a Claim Against AGILLITICS; provided that AGILLITICS or its Affiliates (a) promptly give Customer and its Affiliates written notice of the Claim Against the AGILLITICS Indemnified Parties; (b) give  sole control of the defense and settlement of the Claim Against AGILLITICS (provided that neither Customer nor its Affiliates may settle any Claim Against AGILLITICS Indemnified Parties unless the settlement unconditionally releases AGILLITICS and Affiliates of all liability); and (c) provide to Customer and its’ Affiliates all reasonable assistance, at Customer and Affiliates expense.

8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

 

  1. LIMITATION OF LIABILITY

9.1. Limitation of Liability. EXCEPT WITH REGARD TO INDEMNIFICATION, AGILLITICS’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE CALENDAR QUARTER IMMEDIATELY PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL AGILLITICS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE FOREGOING SHALL NOT LIMIT CUSTOMERS PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR SERVICES). IN NO EVENT SHALL AGILLITICS OR AFFILIATES OR LICENSORS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SERVICES OR THE USE OR OTHER DEALINGS IN AND RELATED TO THE CUSTOMER AGGREGATED DATA, OR CAUSED BY ERRORS OR OMISSIONS IN THE SERVICES OR ITS INPUTS OR OUTPUTS, INCLUDING, WITHOUT LIMITATION, WHETHER SUCH ERRORS OR OMISSIONS ARE CAUSED BY ERRORS OR INACCURACIES IN THE INPUTS TO THE SERVICES, IN THE STORAGE OR ACCESS OF SUCH DATA BY THE SERVICES OR SERVICES, IN THE DISPLAY OR PERFORMANCE OF DATA OR OTHERWISE.

9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL AGILLITICS, ITS AFFILIATES OR ITS LICENSORS HAVE ANY LIABILITY TO CUSTOMER OR ITS AFFILIATES FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT AGILLITICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

 

  1. TERM AND TERMINATION

10.1. Term of Agreement/Renewal Subscription Term. This Agreement commences on the earlier date that  (i) Customer signs the Order Form; or (ii) any of its Users download the AGILLITICS application to their Devices and continues until the Subscription Term stated in the Order Form has expired or been terminated. If a new Order Form and payment of additional Fees occurs at least thirty (30) days prior to the expiration of the Subscription Term, the Subscription Term will be renewed and will continue as provided in the new Order Form (each, an “Extended Subscription Term”).  Upon expiration none of Customers User’s shall have access or use of the Services and all licenses thereto shall be terminated.

10.2. 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) 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 and such proceeding continues for more than one hundred twenty (120) days.

10.3. Surviving Provisions. Section 4 (Fees and Payment for Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 11 (Governing Law, Venue and Notice), and 12 (General Provisions) shall survive any termination or expiration of this Agreement.

 

  1.   Governing Law, Venue and Notice.

11.1 Governing Law & Venue.  The laws of the State of Georgia shall govern this Agreement, without regard to conflicts of law.  Any action related to or arising out of this Agreement shall be venued solely in the Federal District Courts in Georgia located in Atlanta, Georgia and the parties irrevocably commit to the jurisdiction of said courts.

11.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by national recognized carrier for overnight delivery, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).

 

  1. GENERAL PROVISIONS

12.1. Export Compliance. The Services and/or Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation.

12.2. Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of AGILLITICS employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify our finance department at finance@agillitics.com.

12.3. 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.

12.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

12.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

12.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.7. Injunctive Relief. The parties agree that any breach or threated breach of this Agreement will result in irreparable harm to the other party, for which damages would be an inadequate remedy.  In addition to any rights and remedies otherwise available at law, a non-breaching party shall be entitled to seek equitable relief to prevent any such breach, and to such other and further equitable relief as may be deemed proper under the circumstances.  

12.8. Attorney Fees. The prevailing party in any dispute arising under or in connection with this Agreement shall be entitled to a reimbursement by the losing party of its costs and expenses in connection with such dispute, including without limitation, reasonable attorneys’ fees.

12.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.

12.10. Force Majeure.  No party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that they are unable to perform and is directly or indirectly due to any cause or circumstance beyond the reasonable control of such party including, without limitation, acts of God, fire, flood, storms, earthquake, strike, or other labor dispute. The party affected by an event of Force Majeure shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay.

12.11. Entire Agreement. This Agreement, including all linked documents, exhibits, addenda and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any terms or conditions stated in Customers form of purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.