‘Add-ons’ means any new releases of new products/modules/services, offered to Customers on the Unleash Platform at the prices agreed between the parties.
‘Additional Services’ means services as described in section 3.4.
‘Agreement’ means the Quote and these Service Terms and any other schedules attached.
‘Applicable Data Protection Laws’ means: (a) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Unleash is subject, which relates to the protection of personal data or (b) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
‘Content’ means all software, data, text, audio, video, or images (in any form).
‘Customer’ means the entity the Quote is addressed to.
‘Customer Data’ means all Content (in any form) that is provided to Unleash for processing, storage, or hosting by the Services in connection with Customer’s Unleash account.
‘Customer Personal Data’ means any personal data which Unleash processes in connection with this agreement, in the capacity of a processor on behalf of the Customer.
‘Documentation’ means the description and instructions of the relevant Services made available by Unleash
‘Edition’ means the type of license under which the Services are provided to customers. These include but are not limited to Trial, Pro, Enterprise, and Enterprise Premium licenses in use by Unleash with varying terms and conditions.
‘End Users’ means natural or legal persons that are users of a Customer application or site.
‘EU GDPR’ means the General Data Protection Regulation (EU) 2016/679), as it has effect in EU law.
‘Fees’ means the fees as described in the Quote.
‘Intellectual Property Rights’ means all patents, copyrights design rights, trademarks, service marks, know-how, database rights, and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
‘Malicious Code’ means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.
‘Management UI’ means the management user interface provided by Unleash in connection with the Services.
‘Quote’ means (a) for Enterprise Edition, the quote document for the Unleash Platform signed by a Customer representative, and (b) for Pro and Pro Plus Customers, the online registration form for the Unleash Platform completed by a Customer representative
‘Professional Services’ means professional services identified in the Quote.
‘Service Level Agreement’ or ‘SLA’ means the Service Level Agreement applicable to the Unleash Edition which has been purchased as described in Schedule 2.
‘Service Terms’ means these terms and conditions applicable to the use of the Services.
‘Services’ means the means (a) the services provided by Unleash (including the Unleash Platform, documentation, sample code, and any fixes, updates, and upgrades that are provided by Unleash (b) access to the Management UI, Unleash Proxy, Unleash API, Unleash SDKs and the Tools necessary for Customer to make use of the services (c) the Unleash dashboard, (d) any other Unleash Content obtained by Customer (with or without payment of additional fees) as part of the Services during the Term.
‘Special Terms’ means any additional terms in the Quote for Enterprise Edition that shall vary and prevail over any conflicting terms in any other part of the agreement.
‘Term’ means the period beginning on the Commencement Date (as defined in the Quote) until terminated as provided in this agreement.
‘Third Party Content’ means any product, service, Content or item of a third party made available to the Customer in connection with the Services.
“Tools” means (i) materials used in providing the Services which constitute pre-existing proprietary material owned by Unleash (or some other third party, as applicable); and/or (ii) material that has been newly developed by Unleash in the course of performing the Services for the Customer that is of a routine generic or non-customer specific nature.
‘Trial Period” means the period during which Customer may sign up to evaluate the Services without payment as outlined in the online sign-up, and were not outlined, is 14 days.
‘UK GDPR’ has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the UK Data Protection Act 2018.
‘Unleash’ means: A) if Customer is incorporated in the United States / North America Bricks Software inc, a company incorporated in Delaware, or B) if Customer is incorporated in any location other than the United States/ North America, Bricks Software AS a company incorporated in Norway whose registered number is 922 998 337 and place of business is Nedre Slottsgate 13 c/o Evolve, 0157 Oslo, Norway.
‘Unleash Admin API’ means Unleash admin application program interface in connection with the Services as described in the Documentation.
‘Unleash Content’ means Content Unleash makes available in connection with the Service to allow access to and use of the Services, including APIs, SDKs, documentation, sample code, software libraries, command-line tools, proofs of concept, templates, and other related technology (including any of the above provided by our personnel) and does not include Content distributed under separate license terms (such as code licensed under an open-source license).
‘Unleash Personal Data’ means any personal data that Unleash processes in connection with this agreement, in the capacity of the data controller.
‘Unleash Platform’ means the Unleash Services described as the Unleash Platform in the online documentation.
‘Unleash Proxy’ means the proxy provided by Unleash in connection with the Services.
‘Unleash SDK’ means Unleash software development kits made available in connection with the Service. This does not include software development kits related to the Unleash Platform that has been developed and made available by Unleash customers or third parties.
‘Updates’ means a maintenance update, patch, or bug fix which does not constitute an upgrade.
‘Users’ means individuals who are authorized by Customer to access and use the Services on behalf of Customer, and who have been supplied user identifications and login credentials to the UI, API, or SDK by Customer. Users may include employees, consultants, freelancers, and contractors engaged by Customer and agents of Customer. Customer’s customers employees, agents or contractors and software operated by Customers’ customers are not permitted users unless agreed by licence with Unleash.
2 THE SERVICES
2.1 Provision of the Services. Subject to the terms and conditions of this agreement and the applicable Quote, and upon Customer’s payment of the applicable Fees, Unleash (i) grants Customer, a non-exclusive, non-transferable, license to access and use the Services (including the Documentation) in support of the Customer’s internal business operations and (ii) Unleash shall provide the Services in accordance with the Quote. Customer agrees that its subscription to the Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Unleash regarding future functionality or features.
2.2 Customer Responsibilities. Customer shall (i) be responsible for its Users’ compliance with this agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Unleash promptly of any such unauthorized access or use, (iii) be responsible for Customer’s and Users’ use of any Customer Data including without limitation any use of Customer Data in violation of applicable laws and regulations, (iv) use the Services only in accordance with the terms of this agreement and applicable laws and government regulations and (v) be responsible for obtaining the appropriate licenses for any Third Party Content used in connection with the Services, ensuring that such licenses cover Unleash’s use of the Third Party Content for the performance of the Services. If individual consents are required to collect, use, transfer or otherwise process any Customer Data, including without limitation Customer Data subject to data privacy laws and regulations, Customer shall be solely responsible for obtaining all such consents. Customer shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) interfere with or disrupt the integrity or performance of the Services or any content contained therein, or (d) attempt to gain unauthorized access to the Services or the underlying systems or networks.
2.3 Demarcation of Responsibilities. Unleash is responsible for the security of its Services. The Customer’s environment is the Customer’s responsibility. Customer must review all code deployed into the Customer’s environment, even where the code is suggested by the Services. This is because the suggestions provided may not be appropriate for the Customer’s particular set of circumstances, the Customer environment, local laws applicable to the Customer or the Customer’s requirements as a regulated entity, where applicable.
Third Party Content. When Customer accesses any Third Party Content in connection with the use of the Services, the Customer agrees and acknowledges that (a) Unleash is not responsible for interruptions of services or to the Services caused by the Third Party Content provider and (b) the Customer is solely responsible for licensing the use of Third Party Content accessed in connection with the Services
3 FEES AND PAYMENT
3.1 Fees. The fees payable for the Services are as set forth in the Quote. Except as otherwise specified herein or in an Quote, (i) fees are quoted and payable in USD (ii) and (ii) payment obligations are non-cancellable and fees paid are non-refundable.
3.2 Expenses. Customer shall reimburse Unleash for all reasonable expenses incurred by Unleash with the prior approval of Customer in the performance of implementation or requested professional services. Records of reimbursable expenses including statements and receipts shall be provided to Customer along with the invoice to which they pertain.
3.3 Invoicing and Payment. Fees will be invoiced in advance in accordance with the relevant Quote.
(a) For Enterprise and Enterprise premium Edition: Unless otherwise stated in the Quote, fees are due thirty (30) days from the invoice date and all Fees due for the Initial Term (other than for Additional Services) shall be invoiced on the Commencement Date. All Fees shall be paid by electronic funds transfer (EFT). If any amounts invoiced hereunder are not received by Unleash by the due date, then such amounts shall accrue interest at the rate of 8% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(b) For Pro Edition: By signing up to use the Unleash Platform, Customer is creating a subscription based on the Edition that will be paid monthly in advance by payment card. The pricing plan described in the Quote may vary by region and vary relating to date of sign-up and we may update or amend the pricing plan from time to time and will provide Customers with reasonable notice of changes to their pricing plan. Depending on your region, Fees may be inclusive or exclusive of sales or transactional taxes (e.g. sales tax or VAT) as reflected in the pricing plan. To continue to access the Unleash Platform and Services Customer must make timely payments. If any amounts invoiced hereunder are not received by Unleash by the due date, then Unleash may suspend Customer’s access to the Unleash Platform and Services until payment is made. If payment is overdue for greater than 90 days, Unleash may delete the Customer account and Customer Data without any liability to Customer.
(c) For Trial Edition: By signing up to use the Unleash Platform under the Trial Edition, Customer is permitted to evaluate the Services for the Trial Period without payment to Unleash. If Customer wishes to continue using the Services after the expiry of the Trial Period, Customer must subscribe to an Unleash Edition. For Trial Edition, the Services are provided on an as-is basis and Unleash may at any time delete the Customer account and Customer Data without any liability to Customer.
3.4 Additional Services. To the extent that Customer requires any additional products or services, such as new modules (which add new functionality), Add-Ons (which have different names and different functionality from the Unleash Platform), professional services or professional consulting services, Customer may order such additional products and/or services pursuant to a Quote or written statement of work mutually agreed to by the Parties. Additional services (including, without limitation, professional services or consulting services) may be provided by Unleash upon payment of additional fees agreed by the parties.
3.5 Suspension of the Service for non-payment. If any charge owing by Customer is thirty (30) days or more overdue, Unleash may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full.
3.6 Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Services or on Customer’s use thereof, which shall be separately invoiced, excluding taxes based on the net income of Unleash. Customer shall provide to Unleash any certificate of exemption or similar document required to exempt any transaction under this agreement from sales tax or other tax liability.
4 PROPRIETARY RIGHTS
4.1 Reservation of Rights. As between the parties, the Services and all Intellectual Property Rights therein, are and will remain the sole property of Unleash or its licensors and no rights are granted to Customer with respect to the Services, or the Intellectual Property Rights therein, other than the limited rights and licenses specified in this agreement. Customer will not access or use the Services, nor the Intellectual Property Rights therein, except as expressly permitted by this agreement.
4.2 Restrictions. Customer shall not at any time, directly or indirectly, and shall not permit any User to (i) permit any third party to access or use the Services except as permitted herein or in an Quote, (ii) copy, modify or create derivative works based on the Services or the Documentation, (ii) rent, lease, lend, sell, license, sublicense, publish, frame, mirror or otherwise distribute any part or content of the Services or Documentation, (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part, or (iv) access the Services in order to (a) build a competing product or service, or (b) copy any content, features, functions or graphics of the Services.
4.3 License to Feedback; Analytics Data. Unleash shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services. In addition, Unleash collects information about the use of the Services, including information about system and server resources, features used in the integrated development environment, frequency and duration of use, geographic and network locations, and error and information messages (“Analytics Data”) and Customer grants Unleash a non-exclusive, worldwide, perpetual, irrevocable, transferrable, sublicensable, royalty-free, and fully paid up licence under all intellectual property rights to Analytics Data.
4.4 Customer Data. As between the parties, Customer owns all right, title and interest in and to all Customer Data; provided that Unleash will have the right to use the Customer Data to perform its obligations under this agreement.
4.5 Suspension. Notwithstanding anything to the contrary in this agreement, Unleash may temporarily suspend Customer’s and/or any User’s access to any portion or all of the Services if: (i) Unleash reasonably determines that: (A) Customer’s or any User’s use of the Services disrupts or poses a security risk to Unleash or to any other customer of Unleash; (B) Customer, or any User, is using the Services in breach of this agreement or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (D) Unleash’s provision of the Services to Customer is or becomes prohibited by applicable law or (E) Customer has implemented a misconfiguration or use which is putting a high level of “load” on the Services; (ii) any third party has suspended or terminated Unleash’s access to or use of any third-party services or products required to enable Customer to access and use the Services; or (iii) in accordance with section 3.5 (any such suspension described in subsection (i), (ii), or (iii), a “Suspension”). Unleash shall use commercially reasonable efforts to provide written notice of any Suspension to Customer and to provide updates regarding resumption of access to the Services following any Suspension. Unleash shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Suspension is cured. Unleash will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Suspension.
5.1 Confidential Information. As used herein “Confidential Information” shall mean all confidential or proprietary information disclosed orally or in writing by one Party to the other that is identified as confidential or whose confidential nature is reasonably apparent. Confidential Information of Customer shall include without limitation Customer Data; Confidential Information of Unleash shall include without limitation all information relating to the Services; and Confidential Information of each Party shall include the terms and conditions of this agreement and all Quotes, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no fault of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure or any breach of confidence; (d) is independently developed by the receiving Party; or (e) is required to be disclosed by law.
5.2 Protection of Confidential Information. Each Party agrees to (i) hold the other’s Confidential Information in confidence, (ii) 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 reasonable care), and (iii) not use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder or as otherwise authorized by this agreement. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees or consultants that have a need to know such Confidential Information in connection with such Party’s performance under this agreement and that have agreed to be bound by confidentiality obligations similar to those in this section.
5.3 Compelled Disclosure. The receiving Party may disclose the Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure. If the receiving Party is compelled by law to disclose the disclosing Party’s Confidential Information as part of a civil proceeding to which the disclosing Party is a party, the disclosing Party will reimburse the receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
5.4 Obligations on Termination. Upon expiration or termination of this agreement, each Party will: (a) immediately cease all use of the other Party’s Confidential Information (b) cease use of the Services immediately; and (c) permanently erase from computer memory, destroy or return to the other Party the other Party’s Confidential Information, as well as any copies thereof on any media or in any form. Notwithstanding the foregoing, Unleash may retain any data as required by applicable laws, regulations, court orders, subpoenas or other legal process. In addition, any failure of Unleash to return or destroy electronic copies of Customer Data that are automatically generated through data backup and/or archiving systems shall not be deemed to violate the provisions of this section, provided that Unleash shall not use such back-ups or archived copies for any purpose and such copies shall be subject to all confidentiality obligations set forth herein.
6 DATA PROTECTION
6.1 Personal Data. Personal data provided by the Customer shall be processed in accordance with the data processing agreement attached hereto as Schedule 1.
7 WARRANTIES, REMEDIES AND DISCLAIMERS
7.1 Mutual Warranties. Each Party represents and warrants that (i) it has the legal power to enter into this agreement, and (ii) it will not knowingly transmit to the other Party any Malicious Code (as security threats are constantly evolving, no security policy or practice is 100% secure from all risks).
7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING. WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. UNLEASH DOES NOT WARRANT THAT THE SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
8.1 Unleash Indemnification. Unleash agrees to defend Customer against any third party claims, demands, suits, or proceedings (each, a “Claim”) made or brought against Customer alleging that Customer’s use of the Services infringes or misappropriates the intellectual property rights of such third party and to indemnify Customer from any damages finally awarded by a court of competent jurisdiction against Customer or amounts agreed to in settlement in connection with any such Claim. Unleash’s obligations under this paragraph shall only apply to the extent that: (a) Customer promptly notifies Unleash in writing of the Claim; (b) Unleash has control of the defense and all related settlement negotiations relating to the Claim; and (c) Customer provides Unleash with the assistance, information and authority reasonably necessary to perform the above. In no event will Unleash have any obligation or liability under this paragraph for any Claim or action under any legal theory if the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Services with software or other materials not supplied by Unleash, (ii) any alteration or modification of the Services by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, or (iv) the actions or omissions of any person or entity other than Unleash.
8.2 Remedy for Infringement. Should Customer’s right to use the Services pursuant to this agreement be subject to a Claim of infringement or if Unleash reasonably believes such a Claim of infringement may arise, Unleash may, at its option and in its sole discretion (i) procure for Customer the right to continue to access and use the Services; (ii) modify the Services to render them non-infringing but substantially functionally equivalent to the Services prior to such modification; or (iii) if the alternatives described in subsections (i) and (ii) of this paragraph are not commercially practicable, then Unleash may terminate this agreement.
8.3 Customer Indemnification. Customer agrees to defend, indemnify and hold harmless Unleash against any Claims made or brought against Unleash: (i) by a third party alleging that the Customer Data or any other information provided by Customer to Unleash for use in connection with the Services, infringes or violates the intellectual property rights or privacy/data protection rights of a third party and/or (ii) relating to a breach of the Customer Responsibilities as set out in section 2.2, and to indemnify Unleash from any damages finally awarded by a court of competent jurisdiction against Unleash or amounts agreed to in settlement in connection with any such Claims. Unleash shall: (a) promptly notify Customer in writing of the Claim; (b) ensure Customer has control of the defense and all related settlement negotiations relating to the Claim, provided however the settlement of any Claim shall not be made without advance written permission of Unleash, which shall not be unreasonably withheld; and (c) provide Customer with the assistance, information and authority reasonably necessary to perform the above. Unleash shall promptly provide Customer with written notice of any Claim which Unleash believes falls within the scope of this section. Unleash’s failure to provide written notice to Customer shall not affect Customer’s indemnification obligations hereunder except to the extent that Customer is materially prejudiced thereby. At any time after Customer becomes aware of any such Claim, Customer may procure for Unleash the right to continue to use the information for use in connection with the Services at its own expense. Unleash shall not be responsible for any delay or disruption to the Customer’s use of the Services, including any damages stemming therefrom, caused by a Claim falling under this section.
9 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA 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. EXCEPT FOR ITS LIABILITY ARISING OUT OF UNLEASH’s (I) FRAUD, OR WILLFUL MISCONDUCT; (II) NEGLIGENCE LEADING TO DEATH OR PERSONAL INJURY OR (III) A MATTER FOR WHICH LIABILITY MAY NOT BE EXCLUDED NOR LIMITED UNDER APPLICABLE LAW, IN NO EVENT SHALL UNLEASH’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE FEES PAID BY CUSTOMER FOR THE PRODUCT AND SERVICES DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO UNLEASH HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT UNLEASH WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
10 TERM AND TERMINATION
(a) For Enterprise and Enterprise Premium Edition: the initial Term shall be as set out in the Quote and where not specified shall be three years. (“Initial Term”) The Initial Term shall auto renew for successive periods of twelve (12) months (“Renewal Period”) unless terminated by either party by giving at least three (3) months notice in writing prior to the commencement of the Renewal Period. Fees on renewal shall be Unleash’s standard fees as at the date of commencement of the Renewal Period unless otherwise set out in the Quote.
(b) For Pro Edition: the Term is monthly and may be terminated at any time, with termination to take effect on the first renewal date that occurs more than 30 days after notice of termination has been provided.
10.2 Termination for Cause. A Party may terminate this agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3 Refund or Payment upon Termination. Upon termination for cause by Customer, Unleash shall pay any amounts pre-paid by Customer for the Services for the unused portion of the Term. Upon any termination for cause by Unleash, Customer shall pay any unpaid fees covering the remainder of the Services Term after the effective date of termination. In no event shall any termination relieve Customer of its obligation to pay any fees payable to Unleash for any period prior to the effective date of termination.
10.4 Surviving Provisions. Sections 1, 3, 4, 5, 6, 7, 8, 9, 10.4 and 11 shall survive any termination or expiration of this agreement.
11 GENERAL PROVISIONS
11.1 Export Compliance. Each Party shall comply with the export laws and regulations of the European Union and United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each of Unleash and Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Services in violation of any U.S., United Kingdom, European Union or European Economic Area export embargo, prohibition or restriction.
11.2 Critical Systems Exclusion. The Services are not intended for use with life-critical or safety-critical systems.
11.3 Force Majeure. Neither Party shall be in default if a failure to perform any obligation hereunder is caused solely by supervening conditions beyond that Party’s reasonable control, including acts of God, civil commotion, strikes, labor disputes and governmental demands or requirements. When a Party’s delay or non-performance continues for a period of thirty (30) days or more, the other Party may terminate this agreement without penalty.
11.4 Relationship of the parties. The parties are independent contractors. This agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.5 No Third-Party Beneficiaries. There are no third-party beneficiaries to this agreement.
11.6 Notices. Except as otherwise specified in this agreement, all notices, permissions and approvals hereunder shall be in writing and delivered to the addresses set forth on the Quote and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after overnight delivery, (iii) the first business day after sending by email.
11.7 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.
11.8 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.
11.9 Assignment. Customer may not assign the rights granted under this agreement, in whole or in part and whether by operation of contract, law or otherwise, without the other Party’s prior written consent. Such consent shall not be unreasonably withheld or delayed. For purposes of this provision, a change of control shall constitute an assignment. All terms and conditions of the agreement shall be binding upon any assignee hereunder; assignee’s acceptance of these terms shall be evidenced by its performance hereunder.
11.10 Order of Precedence. For Enterprise and Enterprise Premium Edition, where there is a conflict between these Service Terms and the Quote, the Quote shall apply. For Trial and Pro Edition, where there is a conflict between these terms and conditions and the Quote, the Service Terms shall apply.
11.11 Governing Law; Venue. This agreement, and any disputes arising out of or related hereto, shall be governed A) if Customer is incorporated in North America the laws of New York state apply and the parties hereby agree to submit any dispute arising to the exclusive jurisdiction of the New York Courts, or B) if Customer is incorporated in any location other than North America, the laws of Norway apply and the parties hereby agree to submit any dispute arising therefrom to the exclusive jurisdiction of the Olso City Courts.