Master Subscription Agreement
This Agreement was last updated on May 20, 2020.
THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S USE OF AND ACCESS TO THE SERVICES PROVIDED BY LEADIQ, INC WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
This LeadIQ Master Subscription Agreement (the “Agreement”) is made between LeadIQ, Inc. (“Company”) and the party that executes the Order Form (“Customer”), together referred to as the “Parties” and each individually as a “Party.” Each Party agrees that the terms and conditions in this Agreement govern each Order Form that references this Agreement and becomes binding on the Parties upon execution of the Order Form.
In the event of any inconsistency or conflict between the terms of the Agreement and the terms of the Order Form, the terms of the Order Form shall control.
“Affiliates” means an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided such entity is not a competitor to Company or in the business of developing and offering products or technologies that are substantially similar to the Services.
“Authorized User(s)” means an individual natural person, whether an employee, business partner, contractor, or agent of Customer or its Affiliates who is registered by Customer to use the Services. All Authorized Users must be over the age of eighteen (18).
“Confidential Information” means all information disclosed by one Party to the other Party, whether orally or in writing, that is designated as confidential or is information which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, the terms of this Agreement and the Order Form (including pricing), any proprietary materials provided, including product plans, technology and technical information, business and marketing plans and business processes disclosed by such party. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.
“Customer Data” means electronic data and information submitted by or for Customer to the Services, except for Leads Data.
“Data Protection Laws” means existing and prospective international data protection laws and regulations, including but not limited to, the General Data Protection Regulation 2016/679 (“GDPR”).
“Documentation” means the documentation and service feature descriptions, as updated from time to time, provided by Company whether online or otherwise.
“Leads Data” means electronic data and information that can be searched and returned from publicly available sources, Company or third party providers through the Services and acquired by Customer for the purposes of business to business sales prospecting.
“Lead Request(s)” means each fulfilled request made by Customer within the Services to collect Leads Data.
“Service(s)” means the licensed software and services offered via the leadiq.com website and the LeadIQ platform that the Customer has subscribed to in the applicable Order Form.
“Service Data” means Customer Data and Leads Data collected and stored within the Service by Customer, Affiliates and the Authorized Users.
“Subscription Term” means the initial period of time during which Company has agreed to subscribe to the Services as specified in the applicable Order Form.
2.1 Right to Use
Company will make available the Services to Customer pursuant to the terms and conditions of this Agreement and the applicable Order Form(s), and grants Customer a worldwide, limited, non-exclusive, non-transferable right and license during the term of this Agreement, solely for its and its Affiliates’ internal business purposes. Company will provide standard support for the Services to Customer at no additional charge. Notwithstanding the foregoing, the Services may not be available due to: (i) planned downtime (of which Company shall give advanced electronic notice through the Services), and (ii) circumstances beyond our reasonable control pursuant to section 13.9 (Force Majeure). Company reserves the right to make changes to the Services at any time and from time to time, provided, however, Company will not materially decrease the functionality of the Services during a Subscription Term. If Company makes a material change to the Services, Company will notify Customer of such change in advance.
2.2 Usage Limits
Services are subject to either the usage limit for your subscription plan and specified in the Order Form, or otherwise, the usage limit is 10,000 Lead Requests per Authorized User per month (in the event of any conflict, the Order Form shall control). In the event the usage limit is exceeded in a month, Company reserves the right to suspend the Authorized User’s access to the Services for the remainder of the month.
2.3. Customer Responsibilities
Customer shall: (a) use the Services in accordance with this Agreement; (b) be responsible for its Authorized Users’ compliance with this Agreement; (c) use commercially reasonable efforts to prevent unauthorized use or access to the Services, and notify Company immediately of any such unauthorized use or access; (d) be responsible for the accuracy and legality of Customer Data, the means by which it acquires and uses such Customer Data, including compliance with any regulations and laws applicable to the Customer Data, including, without limitation, Data Protection Laws; and (e) be responsible for keeping secure, confidential and comply with all regulations and laws, including Data Protection Laws, applicable to the Leads Data during and following termination of this Agreement and the Services.
Customer shall not, and shall not permit Authorized Users to do the following with respect to the Services: (a) use Services for any purposes other than it’s own business to business sales, marketing, or customer relationship management; (b) use the Services in any unlawful manner; (c) use the Services to send bulk mail, junk mail, spam or other forms of duplicative messages, or in any other way that violates Data Protection Laws, including but not limited to, processing any information that is subject to GDPR unless it is for a purpose that constitutes “legitimate interest” or another lawful basis as provided for in the GDPR; (c) license, sub-license, sell, resell, rent, lease, transfer, distribute, timeshare or otherwise make any portion of the Services available for access by third parties except as otherwise expressly provided in this Agreement; (d) interfere with or disrupt the integrity or performance of the Services; (e) reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code of any software making up the Services; (f) use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Services or to extract or export data collected using the Services; (g) allow the sharing of log-on credentials to access and use the Service, and only the specified number of Authorized Users identified on the applicable Order Form is provided access and use of the Services; (h) permit direct or indirect access to or use of Service in a way that circumvents the Usage Limit; (i) access the Service in order to build a competitive product or service.
2.5 Suspension of Access
If Company becomes aware of any violation of this Agreement by an Authorized User, Company shall suspend that Authorized User’s access to the Services until the violation is cured.
3.1 Subscription Rate
Customer will pay the Subscription Rate specified in the applicable Order Form. Except as otherwise specified herein or in an Order Form, (i) the Subscription Rate is based on Services purchased and not actual usage, (ii) payment obligations are non-cancellable and payments are non-refundable, and (iii) Services cannot be downgraded in any way during the relevant Subscription Term.
3.2 Invoicing and Payments
The Subscription Rate shall be paid in advance of the commencement of the Subscription Term or the Renewal (see section 5.1) by Customer, either annually or in accordance with any different billing frequency stated in the applicable Order Form. For payments by credit card, Customer will provide Company with valid and updated credit card information. If Customer provides credit card information to Company, Customer authorizes Company to charge such credit card for the Subscription Rate listed in the Order Form for the Subscription Term or Renewal. If the Order Form specifies that payment will be by a method other than a credit card, Company will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.
The Subscription Rate is exclusive of all taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessed by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the Services. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessed against it based on its income, property and employees.
3.4 Overdue Payments
If any undisputed invoiced amount is not received by Company by the due date, then without limiting our rights or remedies, (a) those 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, and (b) Company may condition future subscription renewals and Order Forms on payment terms shorter than those specified in section 3.2 (Invoicing and Payment).
3.5 Suspension of Service and Acceleration
If any amount owing by Customer under this or any other agreement for Services is thirty (30) or more days overdue, Company may, without limiting other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services to Customer until such amounts are paid in full. Company will give Customer at least ten (10) days’ prior notice before suspending Services to Customer pursuant to the foregoing.
Company may make a set number of credits available for Customer to redeem for the Services as specified in the applicable Order Form. Customer acknowledges that these credits have no cash value and are not redeemable for cash or any other equivalent currency. There are two categories of credits: Standard Credits and Premium Credits (defined below).
4.2 Standard Credits
“Standard Credits” shall mean a credit that may be redeemed to deliver standard lead and company information, excluding work phone or mobile phone numbers, that is offered through the Services (“Standard Information”). Standard Credits shall be deemed to be used when Customer makes a Leads Request and subsequently receives the Standard Information requested.
4.3 Premium Credits
“Premium Credits” shall mean a credit that may be redeemed to deliver work phone or mobile phone numbers through the Services. Premium Credits shall be deemed to be used when Customer makes a Leads Request and subsequently receives work phone or mobile phone numbers.
4.4 No Rollover of Credits
Unless specified in the Order Form, all Credits will expire every thirty (30) calendar days. All unused Credits shall be forfeited and may not be rolled over to the next 30 calendar days or thereafter.
5. TERM, RENEWALS AND TERMINATION
5.1 Subscription Term and Auto Renewals
Unless you terminate the Services in accordance with the terms of this Agreement or unless otherwise provided for in an Order Form, your subscription to the Services will renew for a term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Rate applicable to the renewed subscription to the Services shall be the same as the Subscription Rate specified in the Order Form for the Subscription Term. Company reserves the right to change the Subscription Rate upon renewal and will notify Customer in advance of the renewal coming into effect.
Either Party may elect to terminate Customer’s subscription to the Services at the end of the Subscription Term by providing notice, in accordance with this Agreement, no less than thirty (30) days prior to the end of such Subscription Term. Customer may also request to cancel their subscription to the Services at any time prior to the end of the current Subscription Term provided Customer agrees that no refunds or credits for any part of the Subscription Rate will be made, and any outstanding amount of the Subscription Rate will become due and payable within ten (10) days of the cancellation request.
5.3 Termination for Cause
Either Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party’s receipt of such written notice; or (b) 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.
5.4 Refund or Payment upon Termination
If this Agreement is terminated by Customer in accordance with section 5.3, Company will refund Customer any part of the pre-paid Subscription Rate covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Company in accordance with this section 5.3, Customer will pay Company any unpaid amount of the Subscription Rate for the remainder of the Subscription Term as specified in the applicable Order Forms. In no event will termination relieve Customer of the obligation to pay any part of the Subscription Rate payable to Company for the period prior to the effective date of termination.
5.5 Deletion and Export of Service Data
For fourteen (14) days after the effective date of termination of this Agreement, and upon Customer’s written request, Company will make Service Data available to Customer for export or download. Thereafter, Company will have no obligation to maintain or provide any Service Data and will, unless prohibited by law or legal order, delete Customer’s Service Data within the Services.
6.1 Protecting Confidentiality
Each Party will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement.
Each Party may disclose Confidential Information (a) solely to the employees and/or non-employee service providers and contractors on a need to know basis and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation.
7. SECURITY AND DATA PRIVACY
Company will maintain appropriate administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Services Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Services Data. Further information is contained in the LeadIQ Information Security Policy documentation.
7.3. Data Processing Agreement
To the extent the Parties execute a Data Protection Agreement (“DPA”) due to the processing of Personal Data (as defined under Data Protection Laws) by Company in its provision of the Services, the terms of such DPA shall be incorporated into this Agreement by reference.
7.4. International Transfers
To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland (“Europe”) are processed by Company, the EU-US and/or Swiss-US Privacy Shield, and/or the Standard Contractual Clauses shall apply, as further set forth in the Company’s DPA. To the extent Company and/or Customer sends or receives Personal Data outside of Europe, the Parties shall ensure that the adequate level of protection for the Personal Data, as provided for under the Privacy Shield Principles and/or the Standard Contractual Clauses, is met, and to ensure compliance with Data Protection Laws.
7.5. Customer as Data Controller
To the extent Services Data contains Personal Data, Customer and Company hereby agree that Customer shall be deemed to be the Data Controller, and Company shall be deemed to be the Data Processor, as those terms are understood under the applicable Data Protection Laws.
8. PROPRIETARY RIGHTS
8.1. Reservation of Rights
Subject to the limited rights expressly granted hereunder, Company and its licensors reserve all of their right, title, interest in and to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights in and to the Services, including all software and other components of or used to provide the Services. No rights are granted to Customer hereunder other than as expressly set forth herein.
8.2. Customer Data
Customer Data processed using the Services is and will remain, as between Customer and Company, owned by Customer. Customer hereby grants Company the right to process, transmit, store or disclose the Customer Data in order to provide the Services to Customer subject to the terms of section 6.2 (Disclosures).
Customer or Authorized Users may, from time to time, provide suggestions, comments, corrections, ideas, enhancement or feature requests or other information (collectively “Feedback”) to Company with respect to any of Company’s Services. Customer grants to Company a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any Feedback provided by you relating to the operation of the Service.
8.4 Publicity Rights
Company may identify you as a customer in our promotional materials. We will promptly stop doing so upon your request.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMER
Each party represents and warrants that it has the requisite power and authority to enter into this Agreement, and that Customer will use the Services, and LeadIQ will provide the Services to Customer, in accordance with all applicable laws, rules and regulations.
Company warrants that the Services will perform materially in accordance with the specifications set forth in the Documentation associated with the Services. For any breach of the above warranty, Customer’s exclusive remedy and Company’s sole obligation is those described in sections 5.3 and 5.4.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR APPLICATIONS. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10.1. Indemnification by Company Company will indemnify Customer, and its employees, directors, agents, and representatives from, and defend them against any actual or threatened claim, demand, suit or proceeding (collectively “Claim”) arising from or related to any alleged infringement of any third-party intellectual property rights by Company in the provision of the Services to Customer, provided Company will not be responsible for alleged infringement that is due to the combination of Company’s Services with goods or services provided by third parties.
10.2. Indemnification by Customer Customer will indemnify Company, employees, directors, agents, and representatives from, and defend them against any actual or threatened Claim arising from or related to: (a) use of the Services by Customer or Authorized Users in violation of this Agreement and applicable laws, rules or regulations; or (b) Customer’s breach of its obligations under section 2.3 (Customer Responsibilities), section 2.4 (Restrictions) or section 6 (Confidentiality).
10.3. Procedure Each Party’s respective indemnification obligations above are conditioned on: (a) the party being indemnified (“Indemnified Party”) giving the the party providing the indemnification (“Indemnifying Party”) prompt written notice of the Claim; (b) the Indemnifying Party being given full and complete control over the defense and settlement of the Claim (as long as the settlement does not include any payment of any amounts by or any admissions of liability, whether civil or criminal, on the part of any of the Indemnified Parties); (c) the Indemnified Party providing assistance in connection with the defense and settlement of the Claim, as the Indemnifying Party may reasonably request; and (d) the Indemnified Party’s compliance with any settlement or court order made in connection with the Claim. The Indemnifying Party will indemnify the Indemnified Parties against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to any Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the Claim (other than attorneys’ fees and costs incurred without the Indemnifying Party’s consent after it has accepted defense of such Claim); and (iii) all amounts that the Indemnifying Party agreed to pay to any third party in settlement of any Claims arising under this section 10 and settled by the Indemnifying Party or with its approval.
10.4 Exclusive Remedy This section 10 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 10.
11. LIMITATION OF LIABILITY
11.1 Exclusion of Damages
EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, IN NO EVENT WILL EITHER PARTY OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR GOODWILL), WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.2 Limitation of Liability NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY’S AGGREGATE LIABILITY TO CUSTOMER, ITS AFFILIATE, OR ANY THIRD PARTY WITH RESPECT TO ANY SINGLE INCIDENT OR SERIES OF RELATED INCIDENTS ARISING OUT OF THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT OR SERIES OF RELATED INCIDENTS. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THE ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COMPANY TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
12. GENERAL TERMS
Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement and all applicable Order Forms in its entirety, without the other Party’s consent in the event of a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity securities, provided that any such successor agrees to fulfill its obligations pursuant to this Agreement.
12.2 Entire Agreement
This Agreement, including all executed documents referred to in this Agreement, is the entire agreement between Company and Customer regarding the Services provided under this Agreement. This Agreement supersedes, and the Parties disclaim any reliance on, all previous oral and written communications (including any confidentiality agreements pertaining to the Company under this Agreement), representations, proposals, understandings, undertakings, and negotiations with respect to the subject matter hereof and apply to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
Company may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. No supplement or amendments of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each Party.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.5 Relationship of Parties
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties do not intend to create any third-party beneficiaries of this Agreement, and nothing in this Agreement is intended, nor shall anything herein be construed to create any rights, legal or equitable, in any person other than the Parties to this Agreement.
12.6 Export Control The Services and the provision and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer agrees to comply with all such laws and regulations as they relate to access to and use of the Services by Customer, its Affiliates and Authorized Users. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Authorized Users to access or use any Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
12.7 Severability If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.8 Notices All notices under this Agreement shall be in writing and be deemed to have been given upon: (i) personal delivery, (ii) two (2) business days after mailing or depositing with a nationally recognized courier, (iii) two (2) business days after after sending by confirmed facsimile, or (iv) immediately upon delivery by electronic mail (provided email shall not be sufficient for notices of an indemnifiable claim). Notices to Company shall be addressed to LeadIQ, Inc, Attn: CEO; 548 Market Street PMB 20317, San Francisco, CA 94104 Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer.
12.9 Dispute Resolution The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to this Agreement or the Services (“Dispute”) through negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to seek from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within sixty (60) days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or equity.
12.10 Governing Law and Jurisdiction This Agreement shall be governed by the laws of the State of California, USA, without reference to conflict of laws principles. Any disputes under this Agreement must be brought solely and exclusively in the State or Federal court in Santa Clara, California, USA , and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Santa Clara, California.
12.11 Force Majeure Except for the Client’s payment obligations, neither Party shall be liable for any delay or failure in performance of to the extent caused by a condition, such as natural disaster, an act of war or terrorism, acts of God, riot, labor condition, governmental action, Internet disturbance, or acts undertaken by third parties, including without limitation, denial of service attack that was beyond the Party's reasonable control.
12.12 Survival The sections in this Agreement that are intended by their nature to survive termination or expiration shall so survive any termination or expiration of this Agreement.