SOFTWARE AS A SERVICE AGREEMENT


THIS SOFTWARE AS A SERVICE AGREEMENT (THIS “AGREEMENT”) IS ENTERED INTO BY AND BETWEEN CLIENT AND CXOLOGY LLC, AN INDIANA LIMITED LIABILITY COMPANY (“PROVIDER”). THIS AGREEMENT GOVERNS CLIENT’S USE OF THE CLOUD SERVICE (AS DEFINED HEREIN). IF CLIENT REGISTERS FOR A TRIAL OF THE CLOUD SERVICE, THIS AGREEMENT SHALL ALSO GOVERN ANY SUCH TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING OR CHECKING A BOX INDICATING CLIENT’S ACCEPTANCE, PERFORMING SOME OTHER FORM OF ASSENT, OR BY EXECUTING OR OTHERWISE AGREEING TO A STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT AND OF WHICH THIS AGREEMENT IS A PART, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. CLIENT REPRESENTS THAT IT HAS THE AUTHORITY TO BIND CLIENT AND ITS AFFILIATES TO THIS AGREEMENT. IF CLIENT DOES NOT HAVE SUCH AUTHORITY, OR IF CLIENT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, CLIENT MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE CLOUD SERVICE. 


  1. Definitions. The following terms shall have the following meanings when capitalized and used herein:


“Client” means the person, company, or other legal entity accepting this Agreement (and affiliates of any such company or entity), which has agreed to one or more Statements of Work for the Cloud Service.


“Client Data” shall mean all information or data, electronic or otherwise, provided or submitted by Client or Permitted Users, to or for use in the Cloud Service or any other services provided by Provider to Client, except that Client Data shall not include Client Statistics.


“Client Statistics” shall mean data and information related to Client’s and Permitted Users’ use of the Cloud Service, that are used by Provider in an aggregated, anonymized manner to compile statistical and performance information related to the provision and operation of the Cloud Service, and for any other use permitted by this Agreement.


“Cloud Service” shall mean Provider’s software-as-a-service virtual learning platform to which Client desires access and use.


“Derivatives” shall mean customizations, enhancements, improvements, integrations and other modifications of, with, and to Provider IP.


“Feedback” shall have the meaning set forth in Section 5(c).


“Fees” shall mean those sums payable, according to each Statement of Work, by Client to Provider for access to, and use of, the Cloud Service.


“Malicious Code” shall mean any and all disabling or damaging devices, algorithms, routines, subroutines, programs, or other similar data including, but not limited to, viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs.


“Parties” shall mean Provider and Client, collectively.


“Party” shall mean Provider or Client, individually.


“Permitted Users” shall mean the Client in the case of an individual user, or in the event Client is a company or entity, an individual who is authorized by Client to use the Cloud Service pursuant to this Agreement (such number of individuals may be listed on the relevant Statement of Work), and to whom the Client (or, when applicable, Provider at Client’s request) has supplied a user identification and password (for Cloud Service utilizing authentication). Permitted Users for a company or entity may include, for example, the Client’s employees, officers, directors, board of directors, consultants, contractors, agents, customers and third parties with which the Client transacts business.


“Provider IP” shall mean (a) the Cloud Service, (b) all specifications, documentation and intellectual property rights with respect to the Cloud Service, (c) any Derivatives, and (d) any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider in connection with the Cloud Service or that otherwise comprise or relate to the Cloud Service. For the avoidance of doubt, Provider IP shall include Client Statistics and any information, data, or other content derived from Provider’s monitoring of Client’s access to or use of the Cloud Service, but shall not include Client Data.


“Statement of Work” shall mean the executed statement of work, (digital or otherwise) for Client’s purchase or other receipt of the Cloud Service that are selected by Client from time to time. Each Statement of Work is a part of this Agreement and fully incorporated herein. 


“Taxes” shall mean any direct or indirect local, state, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, use, sales, excise, or other similar taxes.


“Term” shall have the meaning set forth in Section 10(a).


“Third Party Applications” shall mean any online, Internet-based applications or services or offline software products that are provided by third parties and that Client has elected to use with or that Provider has elected to incorporate into or in connection with the Cloud Service.


  1. Access to and Use of the Cloud Service.


  1. Provision of Access; Reservation of Rights. Subject to, and contingent upon, Client’s payment of any Fees provided for in this Agreement and compliance with the terms and conditions contained herein, Provider shall grant Client a non-exclusive, non-transferrable, non-sublicensable right to access and use the Cloud Service during the Term of this Agreement solely for the use of Permitted Users. Such right to use the Cloud Service is limited to the Client’s internal use only. All rights not expressly granted to Client pursuant to this Agreement shall be retained by Provider. Nothing herein shall be construed as a grant of any intellectual property rights by Provider to Client by implication, waiver, estoppel, or otherwise.


  1. Client Internet Access. DSL, cable, or another high-speed Internet connection is required for proper access to, and use of, the Cloud Service. At all times during the Term, Client shall be responsible for procuring and maintaining the network connections and all software and equipment that may be required for Client to connect to the Cloud Service, including, but not limited to, “browser” software that supports protocols utilized by the Cloud Service. Provider assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by Provider.


  1. Permitted Users; Passwords. In the case of a Client who is an individual and thereby the Permitted User, Provider shall permit Client authorized access to the Cloud Service and will assign, or the Client will create, a unique password and user name accordingly. In the case of a Client that is a company or entity, the party signing up the company or entity hereby represents and warrants that they are authorized on behalf of that company or entity to bind the company or entity to this Agreement, and Provider shall permit Client to authorize access to the Cloud Service and assign unique passwords and user names to up to the number of Permitted Users indicated on the relevant Statement of Work. Permitted User logins and passwords are for designated Permitted Users and shall not be shared or used by more than one Permitted User or individual. For any Client that is an entity or company with more than ten (10) Permitted Users, Permitted User logins may be reassigned to another Permitted User as needed during the Term. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Cloud Service and shall promptly notify Provider of any unauthorized access to or use of the Cloud Service and any loss, theft, or unauthorized use of any Permitted User’s password, name, or Cloud Service account number.


  1. Restrictions on Use. Client shall not access or use the Cloud Service for any other purpose other than as expressly contemplated by this Agreement. At any time during or after the Term, Client shall not, whether directly or indirectly, and shall not permit any Permitted User to: (i) copy, modify, distribute, or create derivative works based upon the Cloud Service, whether in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, publish, transfer, or otherwise make available the Cloud Service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component or code of the Cloud Service, whether in whole or in part; (iv) remove any proprietary notices from the Cloud Service; (v) send via, store within, or upload to the Cloud Service (A) any Malicious Code, (B) any material that infringes the rights of any third party, or (C) illegal or obscene material; and (vi) use the Cloud Service in any manner, or for any purpose, that infringes, misappropriates, or otherwise violates any intellectual property rights of any third parties or otherwise violates applicable law.


  1. Suspension or Termination of the Cloud Service. Notwithstanding anything to the contrary contained herein, Provider shall have the right, at any time, to suspend or terminate Client’s or Permitted User’s access to, and use of, any portion or all of the Cloud Service at any time.  Provider may, but has no obligation to, remove Client Data or suspend a Client’s or Permitted User’s access to the Cloud Service if Client or Permitted User share or otherwise make available Client Data containing material that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or this Agreement. Verbal or written abuse of any kind (including threats of abuse or retribution) by a Client or Permitted User or its representatives directed at any Provider customer, Provider employee, member, or officer will result in immediate account termination..


  1. Client Responsibilities. Client is responsible for all activities that occur in Client’s account(s). Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data; (ii) prevent unauthorized access to, or use of, the Cloud Service, and promptly notify Company of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Cloud Service.


  1. Client Statistics. Client expressly acknowledges that Provider shall have the right to monitor Client’s use of the Cloud Service and collect and compile Client Statistics. Provider shall retain all right, title, and interest in and to the Client Statistics. Provider shall have the right to compile Client Statistics based upon Client Data sent via, uploaded, or input into the Cloud Service. Provider shall have the right to make use of the Client Statistics for purposes of improving the Cloud Service, developing new products and services, and any other internal business purpose. Notwithstanding the foregoing, to the extent that any Client Statistics include information or data subject to federal or state information privacy or security regulations, Provider shall only be entitled to use such Client Statistics in accordance with and to the extent permitted by applicable laws.


  1. Fees; Payment; Taxes.


  1. Fees. Client shall pay to Provider all Fees specified on either (i) the checkout pages Client uses to access the Cloud Service or (ii) the applicable Statement of Work for the provision of the Cloud Service. Except as otherwise specified on the Statement of Work, Fees are based on the Cloud Service purchased; payment obligations are non-cancelable; Fees paid are non-refundable; and the Service purchased cannot be decreased during the Term. The Company may increase the Fees for the Cloud Service from time to time, and shall endeavor to provide Client with thirty (30) days prior notice to the date that the increase will become effective.


  1. Payment. Client shall pay the Fees at such times and at such intervals as indicated in the relevant Statement of Work. All Fees shall be paid by credit card, wire transfer, or Automated Clearing House transfer, which is a condition to the provision of Cloud Service hereunder. In the event that Provider shall institute legal proceedings or collections proceedings for the collection of the Fees or any other amounts due hereunder, Provider shall be entitled to all reasonable costs and expenses actually incurred in the collection thereof, including, without limitation, reasonable attorneys’ fees.


  1. Taxes. Unless otherwise stated, the Fees do not include Taxes. Client shall be responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Provider’s net income or property. If Provider has the legal obligation to pay or collect Taxes for which Client is responsible under this Section, the appropriate amount shall be included in the Invoices and paid by Client, unless Client provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.


  1. Reserved.


  1. Intellectual Property Ownership; Rights.


  1. Provider IP. Client expressly acknowledges that Provider reserves, retains, and owns all rights, title, and interest, including, without limitation, intellectual property rights arising in any jurisdiction worldwide, in and to the Cloud Service and Provider IP.


  1. Client Data. Provider expressly acknowledges that Client reserves, retains, and owns all rights, title, and interest, including, without limitation, intellectual property rights arising in any jurisdiction worldwide, in and to the Client Data. Client hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise make use of and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Provider to provide the Cloud Service hereunder, and for the provision of services beyond the scope of the Cloud Service provided pursuant to this Agreement that require the use of the Client Data but only to the extent that Provider and Client have entered into a separate written agreement for the provision of such services. Nothing contained in this Section 5(b) shall be construed as granting Provider the right to sell, publicly distribute, publicly display, or publish Client Data, except that no such restriction shall apply to Client Statistics.


  1. Feedback. If Client or any Permitted User or agents thereof send, transmit, or in any way provide any communications or materials to Provider, by any medium or means now known or hereafter developed, suggesting or recommending changes to the Cloud Service or any Provider IP, including, without limitation, new features or functionality relating to the foregoing, or any other comments, questions, or suggestions (the “Feedback”), Provider shall have the right to use such Feedback without any further obligation to Client. Client hereby assigns to Provider, on behalf of Client and Client’s personnel and agents, all right, title, and interest in, and Provider shall be free to use without any further action, the Feedback and any and all ideas, concepts, techniques, or other components contained in the Feedback for any purpose.


  1. Integrations. All right, title, and interest in and to (i) any Derivatives, and (ii) all works, inventions and other subject matter incorporating, based on or derived from any Derivatives, in each case by whoever made and including all intellectual property rights therein, are and will remain with Provider. Client has no right or license with respect to any Derivatives, except as expressly otherwise provided for herein. Provider expressly reserves all other rights in and to the Derivatives.


  1. Third Party Websites; Content.


  1. Availability of Third Party Applications. From time to time, Provider or third party providers may offer Third Party Applications and related services to Client in connection with the Cloud Service. Client acknowledges and understands that the use of such Third Party Applications or services may be subject to separate terms and conditions contained on the websites of, or as otherwise provided or made available to Client by, such Third Party Applications. 


  1. No Warranty. Provider does not warrant any such Third Party Applications or services. Client agrees that Provider may allow the parties providing the Third Party Applications to access Client Data as required for the interoperation of such Third Party Applications with the Cloud Service, and any exchange of data or other interaction between Client and a third party provider is solely between Client and such third party provider. The continuing availability of the Third Party Application is subject to the continued effectiveness and terms of any contract between Provider and the third party provider, and Provider makes no representation or warranty with respect to the availability of such Third Party Applications at any time.


  1. Warranties; Disclaimer.


  1. Mutual Warranties. Each Party hereby represents and warrants to the other Party that such party has the legal power to enter into this Agreement; that the signatory hereto has the authority to bind the applicable Party; and when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each Party, enforceable in accordance with its terms.      


  1. DISCLAIMER. EXCEPT FOR THE LIMITED REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 7(a): (I) THE CLOUD SERVICE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, FUNCTIONALITY OR TRADE PRACTICE, AND (II) WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICE OR ACCOMPANYING DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICE, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”.


  1. Indemnification.


  1. By Provider. Provider shall defend, indemnify, and hold Client harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Client by a third party alleging that Client’s use of the Cloud Service within the scope of this Agreement infringes the intellectual property rights of such third party; except that Company shall have no such indemnification obligation to the extent such infringement: (i) relates to use of the Cloud Service in combination with other software, data products, processes, or materials not provided by Provider and the infringement would not have occurred but for the combination; (ii) arises from or relates to modifications to the Cloud Service not made or authorized by Provider; (iii) where Client continues the activity or use constituting or contributing to the infringement after notification thereof by Provider; or (iv) arises from Company’s use of Client Data or Client Statistics in accordance with the terms of this Agreement.


  1. By Client. Client shall defend, indemnify, and hold Provider harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with: (i) any Claim resulting from Client’s use of the Service other than in compliance with the terms of this Agreement; (ii) any Claim that Client Data provided to Provider infringes the intellectual property rights of a third party; or (iii) arises from Client’s negligence or willful misconduct.


  1. Procedure. As an express condition to the indemnifying Party’s obligation under this Section 8, the Party seeking indemnification must: (i) promptly notify the indemnifying Party in writing of the applicable Claim for which indemnification is sought; and (ii) provide the indemnifying Party with all non-monetary assistance, information, and authority reasonably required for the defense and settlement of such Claim. The indemnifying Party may select counsel for defense of the Claim and direct the course of any litigation or other disputed proceedings concerning the Claim. The indemnified Party may select its own counsel and direct its own defense of a Claim if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying Party may settle any Claim, to the extent it seeks a money payment, with or without the consent of the indemnified Party. The indemnifying Party must obtain the indemnified Party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified Party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.


  1. Limitation of Liability.


  1. GENERAL LIMITATION. IN NO EVENT SHALL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE AMOUNTS ACTUALLY PAID BY CLIENT TO PROVIDER OVER THE PRECEDING TWELVE MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM.


  1. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT SHALL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (I) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (III) LOSS OF GOODWILL OR REPUTATION, (IV) USE, INABILITY TO USE, LOSS INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (V) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.


  1. TIME TO FILE CLAIM. NO CLAIM MAY BE BROUGHT BY CLIENT PURSUANT TO THIS AGREEMENT UNLESS SUCH CLAIM SHALL BE BROUGHT WITHIN ONE (1) YEAR OF THE ACCRUAL OF SUCH CLAIM.


  1. Term; Termination.


  1. Term. The initial term of this Agreement shall begin on the Effective Date and, unless terminated earlier pursuant to this Section 10, will continue on either (i) a month-to-month basis (“Monthly Term”), or (ii) for the period of time indicated in the relevant Statement of Work (the “SOW Term”; together the defined terms Monthly Term and SOW Term may collectively be referred to as the “Term”). If no such period of time indicating the Term is set forth in the relevant Statement of Work, then the Term shall be a Monthly Term from the Effective Date.


  1. Termination Without Cause. In the case of a Monthly Term, Provider or Client shall have the right to terminate this Agreement, for any reason or for no reason, by cancelling Client’s subscription to the Cloud Service through the Cloud Service itself. In the case of an SOW Term, Client may not terminate this Agreement until after the completion of the SOW. Provider shall have the right to terminate any Statement of Work and/or this Agreement automatically, immediately and without any prior notice to Client in the event that Client fails to pay any Fees for the Cloud Service. Termination by either Party pursuant to this section shall not relieve Client of the obligation to pay any Fees accrued or payable to Provider prior to the effective date of termination. Upon any early termination by Client pursuant to this paragraph, Provider shall have no obligation to refund Client any prepaid Fees covering the remainder of the Term.


  1. Termination With Cause. A Party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other Party 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 and is not dismissed within sixty (60) days. Upon any termination for cause by Client, Provider shall refund Client any prepaid Fees covering the remainder of the Term. Termination for cause by Client shall not relieve Client of the obligation to pay any Fees accrued or payable to Provider prior to the effective date of termination. Upon any termination for cause initiated by Provider, Client shall remain obligated to pay all Fees owed for the remainder of the Term, all of which Fees shall become immediately due and payable in full.


  1. Client Data. Following the expiration or termination of this Agreement, Provider shall (i) convert Client’s account to an inactive status or delete such account, and (ii) have no obligation to save Client Data.


  1. Survival. The provisions of Section 1 and Sections 3 through 11 of this Agreement shall survive the expiration or earlier termination of this Agreement.


  1. General Provisions.


  1. Relationship of the Parties. Provider shall be an independent contractor of Client. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. 


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


  1. Notices. All notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery to the Party to be notified; (ii) the second (2nd) business day after mailing, registered or certified mail, postage prepaid, return receipt requested; (iii) the second (2nd) business day after sending by confirmed facsimile; (iv) the second (2nd) business day after sending by email, or (v) the second (2nd) business day after sending by message through the Cloud Service. Notices to Provider shall be addressed as follows: CXology Attn: [CONTACT], [ADDRESS], [EMAIL]. Notices to Client shall be addressed to Client’s address and contact information in the relevant Statement of Work. 


  1. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. 


  1. Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction. 


  1. 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 (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without consent of the other party, 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. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns. 


  1. Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of Indiana, without regard to its conflicts of laws rules. Client and Provider agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. If any negotiation required by this section fails, then at the written request of either Party, any controversy, dispute or claim arising out of or relating to this Agreement or any breach hereof shall be finally settled by arbitration by a single arbitrator in Indianapolis, Indiana pursuant to the Commercial Arbitration Rules then in effect of the American Arbitration Association. The award made in such arbitration shall be entered in any court having jurisdiction thereof solely for the purpose of applying for an order confirming, modifying, correcting or vacating the award. The arbitrator shall have no power to alter, amend, revoke or suspend any of the provisions of this Agreement. Except to the extent required by law, no party, arbitrator, representative, counsel or witness shall disclose or confirm to any person not present at the arbitration hearings any information about the hearings, including the names of the parties and arbitrators, the nature and amount of the claims, the financial condition of any party, the expected date of hearing or the award made. Notwithstanding the foregoing, in the event Client fails to make timely payment of Fees or other sums due hereunder, Provider may use collection services in the pursuit of such amounts owed without having to go through the arbitration proceedings set forth in this paragraph.


  1. Force Majeure. Except for obligations of Client for the payment of Fees or other sums hereunder, if either Party is rendered unable, wholly or in part, by force majeure to carry out its obligations under this Agreement, that party shall give to the other party prompt notice of the force majeure with reasonable specificity. Thereupon the obligations of the Party giving notice, so far as they are affected by the force majeure, shall be suspended during, but no longer than, the continuance of the force majeure. The affected Party shall use all reasonable diligence to remove the force majeure as quickly as possible. The term “force majeure” shall without limitation mean an act of God, strike, industrial disturbance, act of the public enemy, war, blockage, public riot, lightning, fire, storm, flood, failure of utilities, failure of internet collocation facilities or other Internet failure, any unauthorized server or computer violation or other security violation, explosion, governmental restraint, or any other cause, whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of the Party claiming suspension. 


  1. Entire Agreement. This Agreement, including all Statements of Work, 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 signed 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 Statement of Work, the terms of this Agreement shall prevail unless expressly stated otherwise in the applicable Statement of Work. The language used in this Agreement shall be deemed to be language chosen by both Parties hereto to express their mutual intent, and no rule of strict construction against either Party shall apply to rights granted herein or to any term of condition of this Agreement.


  1. Precedence. To the extent that the Parties have entered into any other written agreements for the provision of services that are beyond the scope of the Cloud Service provided pursuant to this Agreement, and to the extent that such agreements conflict with the terms of this Agreement, the terms of this Agreement shall control as to the contents hereof and the subject matter contained herein with respect to the provision of the Cloud Service, unless expressly provided to the contrary in such other agreements.


  1. Electronic Execution; Counterparts. This Agreement may be executed in multiple counterparts and by electronic signature, whether digital, encrypted, or otherwise, it being the intention of the Parties hereto that all signatures so affixed shall have the same effect as manual signatures, and each counterpart shall constitute an original, but all of which taken together shall constitute a single instrument.



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