Master Subscription Agreement

SCORM ANYWHERE LLC d.b.a APPINIUM (APPINIUM) SERVICES ARE PROVIDED FOR USE ON A SUBSCRIPTION BASIS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”). ANY PERSON WHO PURCHASES A SUBSCRIPTION, USES, OR ACCESSES, APPINIUM SERVICES, AGREES TO BE BOUND BY THE AGREEMENT. IF YOU ARE A PERSON ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT THAT THE ENTITY AGREES TO BE BOUND BY THE AGREEMENT AND THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF A PERSON DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN THAT PERSON MAY NOT PURCHASE, ACCESS, OR USE THE SERVICES.

 

  1. Definitions.

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 the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the subject, whether through ownership of voting interests or by contract or otherwise.

Customer Data” means all electronic data or information submitted by Customer to the Services.

Customer Org” means the Customer’s Salesforce.com organization in which the Customer implements the Services.

Order Form” means the written document executed by the parties setting forth the Subscriptions for Services and any ancillary products and services purchased by Customer, whether in the form of an Appinium Order Form, a statement of work, or other ordering document, and all addenda and supplements thereto, that are entered into between Customer and Company.

Services” means the Appinium software services and products that are made available for use by Customer under Subscription.

Subscription” means the right to use the Services for one year or for the term provided in an Order Form, subject to the terms and conditions of the Agreement.

User Guide” means the online user guide applicable to the Services, accessible via the unique login link provided by Company to Customer to access the Services, as updated from time to time. Customer acknowledges that Customer has had the opportunity to review the User Guide. Appinium will provide up to ten community licenses per customer. The User Guide may be found in the Appinium Community at the following link:  Appinium Customer Success Community.

Users” means individuals who are authorized by Customer to use the Services and for whom Subscriptions to the Services have been ordered pursuant to an Order Form, and who have been supplied user identifications and passwords by Customer (or by Company at Customer’s request). Users may include but are not limited to Customer’s and its Affiliates’ employees, consultants, contractors and agents, and third parties with which Customer and/or its Affiliates transact(s) business.

  1. Services.
    • Company shall make the Services available to Customer as described in an Order Form for the applicable Subscription term and in accordance with the service commitments stated in this Agreement. Customer agrees that purchases hereunder are not contingent or conditioned on the delivery or development of any new or additional functionality or features, including functionality or features that may be described in comments made by Company regarding future functionality or features.
    • Additional Users. Subscriptions and may be accessed by no more than the specified number of Users. Additional User Subscriptions may be added during the applicable Subscription Term at the same pricing as pre-existing Subscriptions thereunder, prorated for the remainder of the Subscription Term in effect at the time the additional User subscriptions are added. Any such additional User subscriptions terminate on the same date as the pre-existing Subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
  2. Use of the Service.
    • Company Responsibilities. Company shall: (i) provide to Customer basic support (email support available weekdays 8am EST – 5pm EST for the Services at no additional charge at support@appinium.com, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Company shall give at least 48 hours’ notice via the Services and which Company shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (b) any unavailability caused by circumstances beyond Company’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Company employees), or Internet service provider failures or delays, and (iii) provide the Services only in accordance with applicable laws and government regulations.
    • Protection of Customer Data. Company shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data.  Company shall not (a) modify Customer Data, (b) disclose Customer Data except as expressly permitted in writing by Customer, or (c) access Customer Data except as necessary to provide the Services, to prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.  Company shall handle Customer Data consisting of personal data in accordance with the Appinium Privacy Policy:

3.3            Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Company promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. Customer shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit code containing viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs “Malicious Code”, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

 

  1. Third Party Suppliers.

4.1            Non-Company Applications. “Non-Company Applications” means software applications and related services that are provided by entities or individuals other than Company and that interoperate with the Services. Company or third parties may make available to Customer third-party products or services, including but not limited to Non-Company Applications and implementation, customization and other consulting services.  Company does not provide support for Non-Company Applications.  Company does not provide and disclaims all warranties, whether express or implied, with regard to Non-Company Applications, whether or not they are designated by Company as “certified” or similar designation. Subject to Section 4.3 Third Party Platforms, no purchase of non-Company products or services is required to use the Services except a supported computing device, operating system, web browser, compatible platform, and Internet connection.

4.2            Non-Company Applications and Customer Data. If Customer installs or enables Non-Company Applications for use with the Services, Customer acknowledges that Company may allow providers of such Non-Company Applications to access Customer Data to the extent required for the interoperation of such Non-Company Applications with the Services. Company shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Non-Company Application providers. The Services shall allow Customer to restrict such access by restricting Users from installing or enabling such Non-Company Applications for use with the Services.

4.3.           Third Party Platforms.  Company provides the Services to Customer for implementation on third party software technology platforms, including that provided by Salesforce.com. Appinium is not responsible for third party services, which are subject to the terms and conditions of their respective licenses.  Services provided by Salesforce.com are subject to the terms and conditions of Salesforce.com.  In the event that licenses to use Salesforce.com are purchased from Appinium in conjunction with Appinium Services, such licenses are subject to the terms of the Salesforce.com Master Subscription Agreement and other applicable terms and conditions of use as provided at http://www.salesforce.com/company/legal/

  1. Data Storage.
    • Storage. The Services include 5 terabytes of storage per Customer Org at no additional charge beyond any charge(s) specified in the applicable Order Form. Additional storage may be available for purchase for $200 per terabyte per year or the applicable storage rates (as determined by the Company), whichever is less. Customer agrees that the Services will not be used for load testing where content traffic would greatly exceed the normal intended usage of the Services in a production environment.
    • Usage Limitations. Any content or data stored on servers that have not been in use for 2+ years are subject to purging by Company on 120 days’ notice to Customer. Does not include any data stored with Salesforce.com only referring to content stored on Company’s Cloud infrastructure which is currently in Microsoft Azure Cloud.
  2. Fees & Payment.
    • Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased under an Order Form, and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant Subscription Term, (iv) fees are based on annual periods that begin on the subscription start date and each anniversary thereof. Fees for User subscriptions added in the middle of an annual period will be prorated based on the time remaining in the annual subscription period.
    • Invoicing & Payment. Fees for the Services will be invoiced in advance and otherwise in accordance with the terms set forth in the relevant Order Form.  Unless otherwise stated in the Order Form, charges are due upon receipt.  Unless otherwise stated in the Order Form, all payments made under this Agreement shall be in United States dollars. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.
    • Overdue Charges. Any payment not received from Customer by the due date may, at the Company’s discretion, accrue (except with respect to charges then under reasonable and good faith dispute) late charges at the maximum rate permitted by applicable law from the date such payment was due until the date paid.
    • Suspension of Service. If Customer’s account is 60 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Company reserves the right to suspend the Services provided to Customer, without liability to Company, until such unpaid amounts are paid in full; provided, however, that no suspension shall take effect unless Company has given Customer at least 10 business days’ prior written notice that its account is overdue. If the first payment to initiate the Services is not received within 20 business days of the Effective Date, Company shall terminate or suspend the Services immediately. All Services must be prepaid prior to delivery of Services.
    • Taxes. Unless otherwise stated, fees specified in any Order Form 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 the Services. If Company 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 Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Notwithstanding anything to the contrary contained in this Agreement, Company is solely responsible for taxes assessable against Company based on Company’s income, property and employees.
  3. Intellectual Property.
    • Reservation of Rights. “Intellectual Property ” means any patent, copyright, trademark, trade secret, or moral rights, or any other intellectual property or proprietary right, arising under the laws of any jurisdiction.  Company reserves all rights, title and interest in and to the Services, including all related Intellectual Property rights. No rights are granted to Customer hereunder other than the right to access and use the Services under Subscription as expressly set forth herein.
    • Restrictions. Customer shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on, or derived from, the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to or while endeavoring to build a competitive product or service, or copy any of the Service’s features, functions or graphics.
    • Customer Applications and Code. If Customer, a third party acting on Customer’s behalf, or a User creates non-derivative applications or program code, Customer authorizes Company to host, copy, transmit, display and adapt any such applications and program code, solely as necessary for Company to provide the Services in accordance with this Agreement.  Subject to the above, Company acquires no right, title or interest from Customer or Customer’s licensors in or to such applications or program code, including any intellectual property rights therein.
    • Customer Data. Subject to the limited rights granted by Customer hereunder, Company acquires no right, title or interest from Customer or Customer’s licensors under this Agreement in or to Customer Data, including any intellectual property rights therein.
    • Admin User Access. Customer understands and agrees that selected Company technical support personnel may require access to the Customer Org and the Customer Data in the ordinary course of providing customer support and system administrative services in connection with delivery of the Services and Customer hereby consents to any such access solely for the aforementioned limited purpose.
    • Suggestions. Company shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the operation of the Services to the extent that such information does not include the Confidential Information of Customer.
  4. Confidentiality.
    • Definition of Confidential Information. As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. Customer Confidential Information shall include Customer Data; Company Confidential Information shall include the Services, and related source code and data schema; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as each party’s business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential 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.
    • Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than a commercially reasonable degree of care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party, other than its Affiliates and its legal counsel and accountants, without the other party’s prior written consent.
    • Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by applicable 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 applicable law to disclose the Disclosing Party’s Confidential Information as part of a legal 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 Confidential Information.
  5. Warranties & Disclaimers.
    • Warranties by Company. Company warrants that (i) Company has validly entered into this Agreement and has the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) the functionality of the Services will not be materially decreased during a subscription term, and (iv) Company will not transmit Malicious Code to Customer, provided that it will not be a breach of this section if a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty contained in this section, the exclusive remedy shall be as provided in Section 12.5 (Refund or Payment upon Termination).
    • Warranties by Customer. Customer warrants that Customer has validly entered into this Agreement and has the legal power to do so.
    • 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.
    • Beta and Trial Use. Company may invite Customer to try, at no charge, Company’s products or services that are not generally available to Company customers (“Beta Services“).  Any Beta Services will be designated as beta, pilot, limited release, developer preview, non-production or by a similar description.  Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms.  BETA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. Company may discontinue Beta Services at any time in Company’s sole discretion.
  6. Indemnity
    • Indemnification by Company. Company shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a judgment, or court approved settlement of, a Claim Against Customer; provided that Customer (a) promptly gives Company written notice of the Claim Against Customer; (b) gives Company sole control of the defense and settlement of the Claim Against Customer (provided that Company may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (c) provides to Company all reasonable assistance, at Company’s expense. In the event of a Claim Against Customer, or if Company reasonably believes the Services may infringe or misappropriate a third party’s intellectual property rights, Company may, in its sole discretion and at no cost to Customer, (i) modify the Services so that they no longer infringe or misappropriate, which shall not be considered a breach of any warranties contained in this Agreement, (ii) obtain a license for continued use of the Services in accordance with this Agreement, or (iii) terminate User subscriptions for such Services upon 30 (thirty) days’ prior written notice and refund to Customer any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of such termination.
    • Indemnification by Customer. Customer shall defend Company against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that Customer Data, or Customer’s use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Company for any damages, attorney fees and costs finally awarded against Company as a result of, or for any amounts paid by Company under a judgment, or court-approved settlement of, a Claim Against Us; provided that Company (a) promptly gives Customer written notice of the Claim Against Us; (b) gives Customer sole control of the defense and settlement of the Claim Against Us (provided that Customer may not settle any Claim Against Us unless the settlement unconditionally releases Company of all liability); and (c) provides to Customer all reasonable assistance at Customer’s expense.
    • Exclusive Remedy. Section 10 (Indemnity) 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.
  7. Limitation of Liability.
    • LIMITATION OF LIABILITY. EXCEPT IN THE EVENT OF A BREACH OF OBLIGATIONS SET FORTH IN SECTION 6 (FEES AND PAYMENT), SECTION 7 (PROPRIETARY RIGHTS) OR SECTION 8 (CONFIDENTIALITY), NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
    • EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY 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 THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  8. Term & Termination.
    • Term of Agreement. This Agreement commences as of the Effective Date and continues until all User subscriptions granted in accordance with this Agreement or under an Order Form have expired or have been terminated
    • Subscription Term. User subscriptions purchased by Customer commence on the start date specified in the applicable Order Form and continue for the term specified therein (“Subscription Term”).  If no term is stated, the Subscription Term shall be annual, beginning on the date of the Order Form and terminating after one year. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional terms equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant Subscription Term. The per-unit pricing during any such renewal term shall be the same as that during the prior Subscription Term unless Company has given Customer written notice of a pricing increase at least 90 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.  Any such pricing increase shall not exceed 8% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
    • 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.
    • Refund or Payment upon Termination for Cause. Upon any termination for cause by Customer, Company shall refund to Customer any prepaid subscription fees applicable to the period from the effective date of such termination to the expiration of the Subscription Term under the applicable Order Form. No refund of any prepaid fees shall be given upon termination under Section 12.4 for convenience. Upon any termination for cause by Company, Customer shall pay any unpaid fees applicable to the period from the effective date of such termination to the expiration of the Subscription Term under the applicable Order Form. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Company for the period prior to the effective date of termination.
    • Return of Customer Data. Upon request by Customer made within 30 days after the effective date of termination of this Agreement or any Order Form, Company will make available to Customer for download a file of Customer Data in comma separated value (.csv) format along with attachments and eLearning files that are stored on Company’s servers in their native format. After such 30-day period, Company shall have no obligation to maintain or provide any Customer Files and shall thereafter, unless legally prohibited, delete all of Customer Files in Company systems or otherwise in Company possession or under Company control.
    • Surviving Provisions. All Sections which by their nature are intended to survive termination shall survive, including but not limited to Section 6 (Fees and Payment), 7 (Intellectual Property), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Indemnity), 11 (Limitation of Liability), 12.5 (Refund or Payment upon Termination for Cause), 12.6 (Return of Customer Data) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
  9. Further Contact.
    • Company may contact Customer regarding new Company service features and offerings.
  10. General Provisions.
    • Export Compliance. Each party represents and warrants that it shall comply with all applicable export laws and regulations, including the export laws and regulations of the United States and other jurisdictions. Each party represents and warrants that it is not named on any U.S. government denied-party list and shall not permit Users to access or use the Services in a U.S. embargoed country or otherwise in violation of any U.S. export law or regulation.
    • Anti-Corruption. Each party represents and warrants that neither it, nor its employees or agents, shall accept or offer any illegal or improper bribe, kickback, payment, gift, or thing of value to anyone in connection with this Agreement. If either party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party.
    • Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
    • No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons, unless otherwise stated herein.
    • Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses notified by the parties to each other by a means evidenced by a delivery receipt, by facsimile or by email.  Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by email.  Notices to Company shall be addressed to the attention of its VP Finance – with a copy to its General Counsel.  Notices to Customer are to be addressed to the Customer at the address provided by the Customer at the beginning of this Agreement.
    • 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.
    • 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.
    • Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, 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.
    • Governing Law and Venue. This Agreement shall be governed and construed in accordance with the laws of the State of California, without reference to rules regarding conflicts of laws. Any dispute arising out of this Agreement shall be submitted to a state or federal court sitting in Los Angeles, California, which shall have the exclusive jurisdiction regarding the dispute and to whose jurisdiction the parties irrevocably submit.
    • Entire Agreement. This Agreement, including all exhibits and addenda hereto, along with all Order Forms executed hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement.  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.  Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
    • Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.  This Agreement, any amendments hereto and any Order Form, to the extent signed and delivered by means of digital imaging or electronic mail or a facsimile machine, shall be considered to have the same binding legal effect as if it were the original signed version thereof.