1. DEFINITIONS

  1. "Company IP" means, collectively, the Services, the Platform, the Software, the Documentation, and any and all other intellectual property or proprietary materials provided to Customer in connection with the foregoing, including all intellectual property and other proprietary rights in all of the foregoing. For clarity, Company IP includes Aggregate Data (as defined below) and any information, data, or other content derived from Company's monitoring of Customer's access to or use of the Services. Company IP does not include Customer Data.
  2. "Customer Data" means all data and content the Customer or any of its authorized users (including its Trading Partners) may post, submit or display using the Services, Platform or Software or otherwise makes available to the Company in connection with the Services, Platform or Software. For clarity, Customer Data excludes Aggregate Data.
  3. "Documentation" means any end user technical documentation provided to Customer by Company in connection with the Services or operation thereof.
  4. "Fees" means, collectively, the Platform Fee, any Managed Services Fees, any Transaction Overage Fees, and any VAN Usage Fees.
  5. "Initial Service Term" means the initial service term set forth on the Order Form.
  6. "Managed Services" means services provided by Company that include collecting requirements where needed, testing and go-live coordination with Trading Partners and any applicable third party EDI vendors that the Trading Partners use. For clarity, Managed Services do not include professional services such as data migration, implementation, custom development, and individualized training ("Professional Services"). Any such professional services will be provided subject to a separate writing executed by the parties.
  7. "Platform" means Company's cloud EDI software platform that allows Customer to validate, transmit and manage EDI data with all of Customer's Trading Partners, available on Company's website Orderful.com. The Platform enables Customer to control Customer's EDI environment, including adding Trading Partners and managing individual transactions, in real-time.
  8. "SaaS Services" means Company's software as a solution service available through the Platform available at Orderful.com.
  9. "Service Account" means Customer's account via the Services provided by Company which allows Customer to access the Platform.
  10. "Service Capacity" means the monthly usage and transaction thresholds set forth in the Order Form that establish the applicable usage amounts designated as included in the Platform Monthly Fees.
  11. "Services" means the SaaS Services together with the Managed Services, Support Services, and any Professional Services that may be specified in an applicable Order Form.
  12. "Software" means software provided by Company (either by download or access through the internet) that allows Customer to use any functionality in connection with the Services or Platform.
  13. "Support Services" means services provided by Company to enable or optimize Customer's use of the Services as set forth in Exhibit B.

2. SAAS SERVICES AND SUPPORT

  1. Services. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer's Service Account. Customer is solely responsible for the activity that occurs on its Service Account, Customer will keep its Service Account password(s) and/or any other authentication credentials secure, and Customer will not share its password(s) and/or any other authentication credentials with anyone else. Company encourages Customer to use "strong" passwords (passwords that use a combination of upper- and lower-case letters, numbers, and symbols) to protect Customer's Service Account. Company will not be liable for, and expressly disclaim liability for, any losses caused by any unauthorized use of Customer's Service Account and/or any changes to its Service Account, including changes made to Customer's Service Account. Customer will notify Company immediately of any breach of security or unauthorized use of Customer's Service Account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
  2. Support. Subject to the terms hereof, Company will provide Customer with reasonable technical Support Services in accordance with the terms set forth in Exhibit B attached hereto.
  3. License. Subject to the terms set forth herein, including Section 3.1 below, Company hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license, during the Term, to use the SaaS Services, Software and Platform solely in connection with Company's provision of the Services to Customer.

3. RESTRICTIONS AND RESPONSIBILITIES

  1. Use Restrictions. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software; (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (c) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) use any robot, spider, scraper, off-line reader, data mining tool, data gathering or extraction tool, or any other automated means to access the Services in a manner that sends more request messages to the servers running the Services than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Company grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Services for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of, but not caches or archives of, such materials); (e) use any content available on or via the Services (including any caption information, keywords, or other metadata) for any machine learning and/or artificial intelligence training or development purposes, or for any technologies designed or intended for the identification of natural persons; (f) use the Services in any manner or for any purpose that (i) violates, or promotes the violation of, any applicable law, contractual obligation, or right of any person, including intellectual property rights, privacy rights, and/or rights of personality, (ii) is fraudulent, false, deceptive, or defamatory, (iii) promotes hatred, violence, or harm against any individual or group, or (iv) otherwise may be harmful or objectionable (in our sole discretion) to Company or to Company's providers, our suppliers, users, or any other third party; or (g) remove any proprietary notices or labels from the Services or Software.
  2. Export Restrictions. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are "commercial items" and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
  3. Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer accounts, passwords (including administrative and user passwords) and files, and for all uses of Customer accounts or the Equipment with or without Customer's knowledge or consent.

4. CONFIDENTIALITY; PROPRIETARY RIGHTS

  1. Proprietary Information. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services, the Platform and the Software. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services. The Receiving Party agrees: (x) to protect such Proprietary Information with the same care as such Receiving Party protects its own information of the same nature, but in no event less than a reasonable standard of care and (y) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information, unless such person has a need to know such Proprietary Information and is bound by confidentiality restrictions at least as protective as those set forth herein. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof (except with respect to trade secrets, for which confidentiality obligations shall apply until such information is no longer considered a trade secret) or any information that the Receiving Party can document (a) is or becomes generally available to the public without a breach of confidentiality obligations by the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
  2. Company Ownership. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing. Company reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Company IP.
  3. Customer Data. As between the parties, Customer owns all right, title and interest (including any intellectual property rights) in and to the Customer Data. Customer hereby grants to the Company a non-exclusive, worldwide, royalty-free right and license for Company, its employees, and its contractors to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data to the extent necessary to provide the Services and as set out in this Section 4.3. Notwithstanding anything to the contrary contained herein and during and after the Term hereof, the Company, may (a) collect and analyze data relating to Customer's use and the provision and performance of the Services and related systems and technologies for the purpose of (i) improving or enhancing the Services and other present and future Company products and services and other development, diagnostic and corrective purposes related thereto and (ii) creating aggregated data and other statistics ("Aggregate Data") and (b) disclosing such Aggregate Data; provided, however, that in no event will Aggregate Data identify any individual. Customer shall provide the Customer Data and other documents and data in a format specified by the Company, and Customer is solely responsible for (x) the protection and the integrity of transmissions of Customer Data submitted to the Company in connection with the Services and the data contained therein and (y) the content of Customer Data.
  4. Feedback. To the extent Customer provides Company any suggestions, recommendations, or other feedback relating to the Company IP or to any other Company products or services, including the Services (collectively, "Feedback"), Company may, in its sole discretion, use the Feedback and any ideas, know-how, concepts, techniques, and/or other intellectual property contained in the Feedback, without providing any attribution or compensation to Customer or to any third party, for any purpose. Feedback is deemed Company's Confidential Information. Customer acknowledges and agrees that, (a) by acceptance of Customer's submission of Feedback, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by Company's employees, or obtained from sources other than Customer; and (b) Company shall own all intellectual property and the intellectual property rights therein in any and all derivative works created by or on behalf of the Company related to or arising from the Feedback.
  5. Privacy. The Company shall operate its website and provide the SaaS Services in a manner that provides commercially reasonable information security for Customer Data, including commercially reasonable data backup, security, and recovery protections. The Company is not responsible for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to the gross negligence or willful misconduct of the Company. The parties agree to comply with the provisions of any Data Processing Addendum ("DPA") between them, as applicable. In the event of any conflict between Company's privacy policy and a DPA, the DPA shall govern.

5. PAYMENT OF FEES

  1. General. Customer will pay Company the then applicable Fees described in the Order Form and herein ("Invoice Terms") for the Services and Platform usage agreed upon by the parties in the Order Form in accordance with the terms therein and herein. If Customer's use of the Services exceeds the Service Capacity set forth on the Order Form or Invoice Terms or otherwise requires the payment of additional fees (each subject to the terms of this Agreement), Company shall invoice Customer for such usage and Customer agrees to pay the additional Fees in the manner provided in this Agreement. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes in good faith that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Company's customer support department. Customer may address invoice related questions by emailing billing@orderful.com. Company will use commercially reasonable efforts to respond to all billing related inquiries within two (2) business days.
  2. Payment Terms. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month (excluding Fees disputed in good faith) must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company's net income. The first invoice will be issued to the Customer within five (5) business days of the Effective Date and subsequent invoices will be issued in accordance with this Agreement and the applicable Order Form unless otherwise agreed to in writing by the parties.
  3. Automatic Billing. To the extent Customer signs up for automated subscription-based billing, Customer must provide Company with at least one (1) current, valid payment card that is accepted by Company and its authorized third-party payment processor ("Payment Processor") (each such card, a "Payment Method"). By providing a Payment Method, Customer authorizes each of Company and Payment Processor to charge that Payment Method the applicable Fees and taxes, including, if applicable, on a recurring basis until Customer cancels the subscription. Fees are fully earned upon payment. Company may authorize Customer's Payment Method in anticipation of Services-related charges through various methods, including authorizing it up to one (1) month of service as soon as Customer registers for the Services. Company or Payment Processor will attempt to verify Customer's Payment Method(s), and may do so by processing an authorization hold, which is standard practice. To the extent Payment Processor processes payments made by Customer, Customer will be subject to terms and conditions governing the use of Payment Processor's service. Please review such terms and conditions as well as Payment Processor's privacy notice (each of which is available on Payment Processor's website). Customer acknowledges and understands that Payment Processor may collect and retain third-party fees whenever Customer pays Fees. To the extent Customer intends to change its Payment Method or the manner in which Customer is billed, Customer must notify Company at least thirty (30) days in advance of the effective date of such change by using the appropriate functionalities of the Services or by contacting us at billing@orderful.com. CUSTOMER UNDERSTANDS THAT UNLESS AND UNTIL CUSTOMER NOTIFIES COMPANY OF ITS INTENT TO CHANGE ITS PAYMENT METHOD, THE CORRESPONDING FEES WILL AUTOMATICALLY BE CHARGED TO SUCH PAYMENT METHOD IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, AND CUSTOMER AUTHORIZES EACH OF COMPANY AND PAYMENT PROCESSOR (WITHOUT NOTICE TO CUSTOMER, UNLESS REQUIRED BY APPLICABLE LAW) TO CHARGE CUSTOMER THE APPLICABLE FEE AND ANY APPLICABLE TAXES, USING CUSTOMER'S DESIGNATED PAYMENT METHOD. Customer represents and warrants that: (i) the account, order, and Payment Method information Customer supplies to Company and/or to Payment Processor, as applicable, is true, accurate, correct, and complete; (ii) Customer is duly authorized to use the Payment Method(s); (iii) Customer will pay any and all charges incurred by users of its Payment Method in connection with the Services, including any applicable Fees and taxes; (iv) charges incurred by Customer will be honored by its Payment Method company; (v) Customer will not allow or enable anyone else to use its subscription; and (vi) Customer will report to Company any unauthorized or prohibited access to or use of Customer's account.

6. TERM AND TERMINATION

  1. Term. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for subsequent additional periods of the same duration as the Initial Service Term (each a "Renewal Term" and collectively with the Initial Service Term, the "Term"), unless either party requests termination at least thirty (30) days prior to the end of the Initial Service Term or the then-current Renewal Term.
  2. Termination for Cause. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days' notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach is (a) incapable of cure or (b) not cured by such breaching party within thirty (30) days of such party receiving notice of the material breach. Either party may terminate this Agreement immediately if the other party (x) ceases operation without a successor; or (y) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
  3. Effect of Termination. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company can, upon request, make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement that by their nature should survive termination will survive termination, including accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. WARRANTIES AND DISCLAIMER

  1. Mutual Representations. Each party represents and warrants to the other party that: (a) such party has full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (d) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter of this Agreement that are not expressly provided for in this Agreement.
  2. Company Representations and Disclaimer. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the SaaS Services in a manner that minimizes errors and interruptions in the SaaS Services and shall perform the Managed Services, Support Services, and any Professional Services in a professional and workmanlike manner. SaaS Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company's reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SAAS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAAS SERVICES OR ANY OTHER SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SAAS SERVICES AND ALL OTHER SERVICES ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  3. Customer Representations; Suspension. Customer hereby irrevocably represents and warrants to Company that (a) it has all necessary power, authority, right, title and/or licenses to (i) grant to Company the rights and licenses with respect to the Customer Data specified in this Agreement and (ii) to post, submit and/or display on or through the Company's website Customer Data and (b) such granting of the license and use of Customer Data by Company does not and will not (i) violate any applicable law or government regulation or (ii) infringe or otherwise violate any right of publicity or privacy, or any intellectual property right of any third party and (c) none of the Customer Data (i) will constitute obscene, pornographic, indecent, profane or otherwise objectionable material, (ii) is discriminatory, hateful or bigoted toward, or abusive of, any group or individual or (iii) is libelous or defamatory. Customer further represents, covenants, and warrants that Customer will use the Services in compliance with the Documentation and all applicable laws and regulations. Although Company has no obligation to monitor Customer's use of the Services, Company may do so and may prohibit or suspend any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

8. INDEMNITY

  1. Company Indemnity. Company shall indemnify, defend, and hold Customer harmless from liability to third parties resulting from (a) Company's gross negligence or willful misconduct and (b) infringement by the SaaS Services or Software of any intellectual property rights or misappropriation of any trade secret, provided that Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the SaaS Service or Software (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer's use of the SaaS Services or Software is not strictly in accordance with this Agreement. If, due to a claim of infringement, the SaaS Services and/or Software is held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (x) replace or modify the SaaS Services or Software or applicable portion or component thereof to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Customer a license to continue using the SaaS Service or Software or applicable portion or component thereof, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer's rights hereunder and provide Customer a refund of any prepaid, unused Fees for the SaaS Services.
  2. Customer Indemnity. Customer shall indemnify, defend, and hold Company and Company's subsidiaries and affiliates, and its and their respective agents, suppliers, licensors, employees, contractors, officers, and directors (collectively, including Company, the "Company Indemnitees") harmless from liability to third parties resulting from : (a) an alleged violation of the foregoing or otherwise from Customer's use of Services not in compliance with the terms of the Agreement (b) Customer's gross negligence or willful misconduct, (c) Customer Data, or (d) Customer's violation of any laws, regulations, or rights relating to Customer Data (including privacy laws, regulations, or rights).

9. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR (A) BODILY INJURY OF A PERSON OR (B) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY NOR ITS RESPECTIVE SUPPLIERS (INCLUDING ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (I) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (II) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (III) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. MISCELLANEOUS

  1. Third Party Software. All or some portions of the SaaS Services, including open source software, may be provided by a third-party under separate or additional terms and conditions ("Third Party Software"). Notwithstanding anything to the contrary in this Agreement, all such Third Party Software is made available on an "AS IS" and "AS AVAILABLE" basis without warranty or indemnity of any kind. To the extent there is a conflict between the terms and conditions applicable to such Third Party Software and this Agreement, the Third Party Software's applicable terms and conditions will control.
  2. Severability; Interpretation. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The word "including" or any variation thereof means "including, without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
  3. Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Company's prior written consent; provided that Customer may assign this Agreement to an affiliate or in connection with a merger , stock or asset sale or other change of control transaction without Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
  4. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
  5. Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
  6. Force Majeure. Except with respect to Customer's payment obligations, in no event shall either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such breaching party's reasonable control, including acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
  7. Relief. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees.
  8. Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
  9. Governing Law. This Agreement shall in all respects be governed by the laws of the State of Delaware without reference to its principles of conflicts of laws, and without regard to the United Nations Convention on the Sale of Goods. Subject to the following arbitration requirements, the parties hereby agree that all litigation arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within the State of Delaware. The parties hereby consent to the personal and exclusive jurisdiction and venue of these courts.
  10. Dispute Resolution. Except for disputes arising from breaches of either party's confidentiality obligations or infringement claims, for any dispute in connection with this Agreement, the parties agree to first attempt to mutually resolve the dispute informally via good faith negotiation. If the dispute has not been resolved after thirty (30) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration by the American Arbitration Association ("AAA"), under the Expedited Procedures then in effect for AAA, except as provided herein. The arbitration will be conducted in the State of Delaware, unless otherwise agreed. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 10.10 shall be deemed as preventing either party from seeking injunctive, equitable or other relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.