Reseller Agreement

This Reseller Agreement, as amended from time to time (“Agreement”) is between Company and Client, effective as of the Order Date (“Effective Date”). “Company,” “Client,” and “Order Date” shall have the same meanings provided in the applicable Order (as defined below).

WHEREAS, Client desires to resell certain Services (as defined below) provided by Company to certain end customers approved by Company (“End Customers”); and

WHEREAS, Company desires to appoint Client as a non-exclusive reseller of such Services. 

The parties hereto agree as follows:

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1. AGREEMENT STRUCTURE

1. This Agreement provides general terms applicable to Company’s provision of certain services, including, without limitation, access to remote graphics processing units (“GPUs”) on an hourly basis via Company’s cloud environment (“Services”), in mutually agreed transactions described in mutually executed order (“Order”). Such Order will be a separate agreement between Company and Client and will be deemed to incorporate the terms of this Agreement by reference. Company may require Client to provide evidence of creditworthiness or credit support reasonably acceptable to Company as a condition to accepting any Order. In the event of any conflict or inconsistency between the terms of this Agreement and the specific terms of the Order, the specific terms of the Order govern with respect to such Order.

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2. SERVICES 

1. Company hereby grants Client a non-exclusive, non-transferable, non-sublicensable license to (i) sell Services to End Customers as specified in the applicable Order, (ii) use Services solely for the purposes of demonstrating, marketing, and promoting the Services agreed upon by Company; and (iii) distribute the marketing collateral relating to Services that Company may furnish to Client hereunder (“Marketing Materials”) to End Customers and prospective End Customers for the purpose of promoting the sale of Services. Company retains title to all materials used or provided by Company to provide Client and End Customers with the Services. For the avoidance of doubt, nothing in this Agreement transfers to Client any ownership, interest, or proprietary rights in any software, technology, work, processes, patent, intellectual property, or other proprietary rights of Company (or any part thereof), and all right, title, and interest in and to the foregoing will remain solely with Company. 
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2. Client acknowledges that the Services are provided on an “as is,” “as available” and “with all faults” basis, and that Client will follow any requirements, specifications, instructions, conditions, or procedures contained in the Order. Subject to any specific terms of the Order, Client agrees that to the maximum extent permitted by applicable law, in no event shall Company be liable to Client or any third parties for any inability to use the Services (whether due to disruption, changes to or termination of the Services or otherwise), any delays, inaccuracies, errors or omissions with respect to any communications or transmission or delivery of all or any part thereof, or any damage (direct, indirect, consequential or otherwise) arising from the use of or inability to use the Services. If Company determines in its reasonable business judgment that Client’s use of the Services does not conform to its policies, Company may suspend the Services until Company approves of Client’s operation.
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3. In order to continue to provide the Services, from time to time, Company may request, and Client shall promptly provide information regarding Client’s operation, Client’s related operating software, Client’s systems, and other information reasonably necessary in Company’s provision of the Services.
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4. If software and services of a third party are used by Client in conjunction with the Services (“Third Party Services”), Client acknowledges and agrees that such Third Party Services are the responsibility of the third party, subject to separate terms and conditions between such third party and Client. Company accepts no responsibility for the performance of such Third Party Services or any loss or damage arising from or associated with the provision of such Third Party Services.

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3. RESELLER OBLIGATIONS

1. Deal Registration and Preferred Price. Client shall submit each opportunity of an End Customer to Company for registration in accordance with Company’s deal registration requirements as provided and amended from time to time by Company, subject to the terms set forth herein, in exchange for preferred price as determined by Company from time to time (the “Preferred Price”). Client shall disclose to Company all information as required by Company, including but not limited to, the full legal name and other information of End Customer, for the registration. The aforesaid registrations shall be reviewed and processed in the chronological order in which they are received by Company. If (i) the opportunity submitted by Client has not already been previously submitted or registered by anyone and (ii) Company determines that such opportunity otherwise meets all of Company’s then-current deal registration requirements, then Company may approve such registration and in such case the opportunity will be deemed as a “Registered Opportunity” for pricing purposes (“Approval”). Subject to Company’s inventory availability and the terms set forth herein and in the applicable Order, for the period of thirty (30) days immediately after Approval, Client shall be entitled to the Preferred Price for the binding order for the Registered Opportunity fully executed by Client and End Customer. For the avoidance of doubt, for any opportunity that (i) has not been submitted for registration by Client, (ii) has not been approved by Company as a Registered Opportunity, or (iii) has already been submitted to Company for registration by any party other than Client, Client will not be entitled to, and Company is not obliged to provide, the Preferred Price. For any of Client’s opportunities other than the Registered Opportunity, Company’s standard pricing will apply, subject to the terms set forth herein and in the applicable Order.
   
   
2. Line of Credit. Client shall establish a line of credit for each Order with one of the following: (i) Company, (ii) Company’s designated payment processor, or (iii) a third-party credit provider selected by Client, subject to Company’s prior written approval. Company reserves the right to cancel any Order that fails to meet Company’s credit and compliance verification requirements.
   
   
3. Marketing and Promotion. Client will market and promote Services to End Customers in accordance with the terms of this Agreement and the instruction provided by Company from time to time. From time to time, Company may provide Client with Marketing Materials to enable Client to market and promote Services. Client may not modify any such Marketing Materials without Company’s prior written consent. Client shall use its best efforts to effectively market, promote and sell Services to its current and future End Customers. As mutually agreed by the parties, Client shall cooperate and participate in promotional, marketing, sales and advertising programs or efforts sponsored or initiated by Company.
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4. Reports. Company may request from Client, and Client will provide to Company, a report that summarizes Client’s sales forecasts for Services, marketing event results, and End Customer account details for the purposes of business reviews. Client will at all times keep complete and accurate records pertaining to this Agreement, and its receipt, handling and sale of all Services. Company reserves the right to require Client to provide documented evidence of its compliance to inspect or audit, or to have a reasonably agreed upon third party inspect or audit such records to verify its compliance with this Agreement. Client will promptly notify Company of any claim or proceeding, or any claimed or suspected defects, relating to the Services of which Client becomes aware. Client’s performance and adherence to Company’s deal registration policies will be reviewed annually to determine continued eligibility as a reseller of Company.

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4. PAYMENT TERMS AND TAXES

1. Company will invoice Client monthly in advance for all applicable fees for the use of the Services as set forth in the applicable Order. Client will pay all invoiced amounts in US dollars, within ten (10) calendar days of the date of the invoice. All payments must be (i) in US dollars into the designated account number of Company as set forth in the applicable Order; or (ii) another account or form of payment mutually agreed between Company and Client. Interest shall be charged on past due amounts at the lesser of (A) one and a half percent (1.5%) per month; or (B) the highest rate permitted by applicable law.

2. Client may, in good faith, dispute any invoice or any part thereof (a “Disputed Amount”) by submitting a written notice of such dispute along with reasonable supporting documentation within ten (10) calendar days of the date of the initial invoice on which the Disputed Amount appears, failing which Client waives all rights to dispute such Disputed Amount and to file any claim. Company will review the Disputed Amount after its receipt of the relevant notice and Client is only liable to settle the invoice after Company provides reasonable supporting documentation that the invoice is billed correctly. If Company determines that Client was billed in error, a credit for the amount invoiced incorrectly will be made to the next invoice. If Company determines in its sole discretion that the amount was invoiced correctly, Client will pay the amount by the due date of the next invoice. For clarity, Client shall promptly pay all undisputed amounts.

3. Client is responsible for (i) taxes related to its activities; and (ii) taxes imposed, levied or assessed thereon by any governmental or other authorities. If Client is required to make any deduction, withholding or payment for taxes in any jurisdiction on amounts payable to Company, such amounts will be increased such that after making such deduction, Company receives an amount equal to what it would have received if such deduction, withholding or payment had not been made.

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5. TERM, TERMINATION, MODIFICATION AND SUSPENSION

1. This Agreement commences on the Effective Date and continues until terminated as permitted by this Agreement. Each Order commences on the effective date set forth in the Order, has the initial term (“Initial Term”) set forth in the Order, and thereafter automatically renews for the additional periods set forth in the Order, or if no renewal period is set forth then twenty (20) months periods, (each, a “Renewal term” and collectively, the “Term”) unless Client notifies Company in writing not less than sixty (60) calendar days before such renewal of its desire for the Order not to renew.

2. Either party may terminate an Order upon written notice to the other party and take such other action identified in Section 5(d) below if the other party materially breaches such Order or this Agreement and fails to cure such breach within fourteen (14) calendar days (seven (7) calendar days in the case of failure to pay an Unpaid Balance (as defined below) or five (5) calendar days in the case of failure to pay an Unpaid Balance two or more times during any twelve (12) month period). If the breach (other than Client failure to pay amounts when due) cannot be cured within fourteen (14) calendar days, the breaching party shall be given a reasonable period of time, but not to exceed thirty (30) calendar days after receipt of the notice, to cure the breach, provided that the breaching party acts promptly and diligently to cure such breach.

3. In addition to the remedy set forth in Section 5(b) above if Client fails to pay all invoiced amounts when due (an “Unpaid Balance”), or otherwise fails to perform any of its obligations under this Agreement after opportunity to cure as provided in Section 5(b) above, Company may, in its sole discretion, take certain actions including, without limitation, the following actions, at Client’s sole risk and expense:

• suspend the provision of the Services;
• declare all amounts due under the applicable Order through the balance of the Term to be immediately due and payable;
• forfeit Client’s security deposit, if any;
• terminate this Agreement and all Orders; and
• exercise all other rights under this Agreement, at law, in equity or otherwise.

Unless Company has terminated this Agreement, Company will reverse the suspension of the provision of the Services as soon as reasonably practical after it is satisfied Client has cured the acts or omissions giving rise to the suspension and disconnection. In connection with the foregoing, Company may charge a reinstatement fee.

4. Notwithstanding anything in this Agreement to the contrary, Company may suspend its provision of all or a portion of the Services immediately if Company reasonably determines that: Client’s or any End Customer's use of the Services (i) may adversely impact or pose a security risk to Company’s operation or Company’s other clients; (ii) may subject Company to liability; or (iii) is not in compliance with this Agreement or Company’s policies. Company will use commercially reasonable efforts to notify Client, which may be via email or telephone, of such suspension or disconnection. Company will use commercially reasonable efforts to reverse such suspension or disconnection as soon as reasonably practical after it is satisfied that Client has cured the acts or omissions giving rise to such suspension and disconnection. In connection with the foregoing, Company may charge a reinstatement fee as set forth in the applicable Order. Further, Company may terminate this Agreement and all Orders if such suspension or disconnection continues for at least five (5) calendar days or occurs more than three (3) times in any twelve (12) month period. For clarity, during the period of suspension or disconnection, Client remains responsible for all fees and charges Client and all End Customers incur during such period. Further, after the Effective Date, if Company determines in its sole and absolute discretion that as a result of any change in, or interpretation, introduction or administration of, any laws, regulations, statutes, treaties, rules, guidelines, ordinances, codes or the like, or any proposed or anticipated changes in, or interpretations, introduction or administration of the foregoing (a “Change in Law”), has resulted in an increase in Company’s cost of compliance with such Change in Law then Company may, in its commercially reasonable discretion, take certain actions, including, without limitation, the following actions, at Client’s sole risk and expense: (i) terminate this Agreement, any or all Orders; and/or (ii) modify the Services as may be necessary to account for such Change in Law. Company will use commercially reasonable efforts to notify Client of such Company actions and the effective date of such actions.

5. Further, and notwithstanding the Change in Law related costs above, after the Effective Date, if there are any increases, changes in, or introduction or administration of, any new taxes, levies, tariffs, fees, charges or other expenses with respect to the provision of Services, Company may, with mutual agreement between both parties, pass through all such amounts to Client (“Increased Costs”) in accordance with the payment and invoicing procedures as set forth in this Agreement, in which event Client shall pay all such Increased Costs.

6. Company shall not be liable for any Client loss or damage whatsoever as a result of the exercise of its rights under this Agreement. Upon termination of this Agreement or an Order by Company, Company is entitled to recover from Client all loss or damages incurred by Company as a result of such termination, outstanding fees, costs, charges, assessments, reimbursements, and expenses (including, without limitation, costs of collection and reasonable attorneys’ fees).

7. In addition to Section 5(f), Company may terminate or suspend all or a portion of the Services if necessary to be in compliance with applicable law, rules, regulations, administrative or judicial orders or decree. Company will use commercially reasonable efforts to notify Client, which may be via email or telephone, of such suspension. Client agrees that Company shall have no liability whatsoever to Client for any damage, loss, expense or cost as a result of such termination or suspension. Company does not provide back-up services. Backing up Customer Data (as defined below) is the sole responsibility of Client, and Company disclaims all responsibility for any loss of Customer Data incurred when using the Services. “Customer Date” in this Agreement shall mean (i) all data uploaded by Client to Company’s infrastructure and (ii) all data created by Client to Company’s infrastructure.

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6. WARRANTIES, LIMITATION OF LIABILITY, INDEMNITY

1. Each party represents, warrants, and covenants that it has full legal capacity, right, power and authority to execute and perform its obligations under this Agreement and the Order. Client represents, warrants, and covenants that, and Client shall procure each End Customer to represent, warrant, and covenant that, it will not: (i) bypass or breach any security device or protection used by the Services or access or use the Services other than by Client or such End Customer, respectively; (ii) input, upload, transmit, or otherwise provide to or through the Services any information or materials (including Customer Data) that are unlawful or injurious, or contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code; (iii) access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other third party); (iv) access or use the Services in any manner or for any purpose that violates any federal, state, or foreign law or regulations or local code, rule, regulation or ordinance; (v) access or use the Services for purposes of competitive analysis of the Services, the development, provision, or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage; (vi) access or use the Services in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; and (vii) access or use the Services beyond the scope of the authorization granted by Company. Without limiting the foregoing, Client further represents, warrants, and covenants neither Client, any End Customer, any officer, director, employee, partner, controlling shareholder, affiliated entity nor anyone acting on Client’s behalf (A) has used or disclosed or will use or disclose Company’s Confidential Information obtained from Company, (B) has violated or will violate applicable anti-bribery or anti-corruption laws, including, but not limited to, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010, (C) has violated or will violate applicable anti-money laundering statutes, or (D) is a Denied Party or subject to any U.S. sanction imposed by the Office of Foreign Assets Control of the U.S. Department of the Treasury. Without limiting the foregoing, Client shall further procure each End Customer to represent, warrant, and covenant, neither such End Customer, any officer, director, employee, partner, controlling shareholder, affiliated entity nor anyone acting on such End Customer’s behalf (A) has used or disclosed or will use or disclose Company’s Confidential Information obtained from Company, (B) has violated or will violate applicable anti-bribery or anti-corruption laws, including, but not limited to, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010, (C) has violated or will violate applicable anti-money laundering statutes, or (D) is a Denied Party or subject to any U.S. sanction imposed by the Office of Foreign Assets Control of the U.S. Department of the Treasury.

2. COMPANY DOES NOT MAKE AND HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, EXPRESS, IMPLIED AND STATUTORY WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. ALL SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND CLIENT’S AND ANY END CUSTOMER’S USE OF THE SERVICES IS SOLELY AT ITS OWN RISK. CLIENT ACKNOWLEDGES AND AGREES THAT, AND CLIENT SHALL PROCURE END CUSTOMER TO ACKNOWLEDGE AND AGREE THAT, COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA OR POWER TO OR FROM COMPANY’S NETWORK AND/OR THE INTERNET OR POWER GRID, WHICH ARE PROVIDED OR CONTROLLED BY THIRD PARTIES, AND THAT ACTIONS OR INACTIONS OF THIRD PARTIES CAN IMPAIR OR DISRUPT COMPANY’S CONNECTIONS TO THE INTERNET OR POWER GRID (OR PORTIONS THEREOF) INCLUDING, WITHOUT LIMITATION, INTERRUPTIONS IN SERVICE CAUSED BY GOVERNMENT REGULATIONS OR ORDERS, SYSTEM CAPACITY LIMITATIONS OR LIMITATIONS IMPOSED BY, OR FAILURES OF, AN UNDERLYING COMMUNICATIONS CARRIER. COMPANY WILL ENDEAVOR TO TAKE ACTIONS IT DEEMS APPROPRIATE IN ITS SOLE DISCRETION TO REMEDY AND AVOID SUCH EVENTS. HOWEVER, COMPANY CANNOT AND DOES NOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR, AND COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. COMPANY HEREBY DISCLAIMS ALL RESPONSIBILITY FOR THE ACTS OR OMISSIONS BY COMPANY’S OTHER CUSTOMERS AND CLIENTS AND OTHER THIRD PARTIES.

3. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL COMPANY BE LIABLE TO CLIENT OR ANY END CUSTOMER FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES (EXCEPT THAT CLIENT SHALL BE LIABLE FOR ANY FEES OR OTHER AMOUNTS OWED TO COMPANY UNDER THIS AGREEMENT); (IV) LOSS, INTERRUPTION OR USE OF DATA OR LOSS OF USE OF THE SERVICES; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) COST OF COVER, ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

4. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY’S TOTAL LIABILITY TO CLIENT AND ALL END CUSTOMER(S) IN THE AGGREGATE FOR THE ENTIRE TERM (REGARDLESS OF WHETHER THE CLAIMS ARE BROUGHT DURING OR AFTER THE TERM) WITH RESPECT TO ALL CLAIMS ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) WILL NOT EXCEED AN AMOUNT EQUAL TO ONE (1) MONTH’S FEE PAYABLE TO COMPANY PURSUANT TO THE APPLICABLE ORDER.

5. Client hereby waives the right to bring any claim against Company arising out of or in any way relating to an Order more than one (1) year after the date such Order expires or is terminated. Each party recognizes and agrees that the warranty disclaimers, limitations of liability and remedy limitations in this Agreement are materially bargained for by the parties.

6. Client acknowledges that Services involve inherent risks, including, without limitation, risks related to law, regulations, government policies, telecommunications infrastructure, system or network performance and availability, data corruption or loss, and Client is solely responsible for such risks. Client hereby agrees to indemnify, hold harmless Company form and against any and all types of liabilities, losses, damages, claims, fines, fees, penalties, interest, settlement amounts, attorneys’ fees, costs of court, litigation costs, and Client further assumes responsibility for all such liabilities, losses, damages, claims, fines, fees, penalties, interest, settlement amounts, attorneys’ fees, costs of court, litigation costs, and risks, and Company disclaims all types of liabilities, losses, damages, claims, fines, fees, penalties, interest, settlement amounts, attorneys’ fees, costs of court, litigation costs or loss of funds that may arise as a result.

7. Client shall indemnify, defend and hold harmless Company and its affiliates, stockholders, directors, officers, employees, subcontractors and invitees from and against any losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from or relating to (i) breach of Client’s representations, warranties, or covenants in this Agreement or in an Order, or Sections 2 or 7; (ii) Client’s or Client’s employees’, agents’, representatives’, customers’, or clients’ use of the Services; or (iii) Client’s installation or use of any non-standard software or firmware with the Services.

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7. CONFIDENTIAL INFORMATION

1. Each party acknowledges that it and its employees or agents may, in the course of performing its responsibilities under this Agreement or the Order, be exposed to or acquire information which is proprietary to or confidential to the other party, including, without limitation, business plans, strategies, forecasts and projections and information about business structures, operations, systems, finances, assets, investments, investment strategies, software and other technology systems, and personnel, customers and suppliers (collectively, “Confidential Information”). Neither party may use or copy any Confidential Information except to the limited extent necessary to perform its obligations under this Agreement and will not disclose any Confidential Information to any person or entity other than to its affiliates, employees and advisers who have a need to know the Confidential Information or as otherwise expressly permitted by this Agreement. Each party shall use the same measures that it uses to protect its own most confidential and proprietary information to protect the Confidential Information from use or disclosure in violation of this Agreement, but in no event less than commercially reasonable measures.

2. The restrictions on use of Confidential Information do not apply to information if it (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party. 

3. Upon termination or expiration of this Agreement, or at any other time at the request of the other party, each party shall return to the other party, or destroy and delete, as applicable, all Confidential Information and any copies thereof in its possession or control.

4. Neither party may use the other party’s trademarks, service marks, trade names, copyrights, other intellectual property rights or other designations in any promotion, publication or press release without the prior written consent of the other party in each case, which consent may be given in an Order.

5. Notwithstanding any contrary provisions in this Agreement, if Client requests or suggests changes to Company’s products or services, absent a separate custom development agreement Client grants Company the right to freely incorporate such changes or suggestions into Company’s products and services without restriction. The parties acknowledge that Client may from time to time provide Company with ideas, comments, suggestions, or other feedback on the features or functionality of Company’s Services made by any End Customer, Client or employee of Client whether in writing or orally (collectively, “Feedback”). The parties agree and acknowledge that any Feedback is provided voluntarily by Client. In the event Client provides Company with Feedback, Client hereby grants to Company a perpetual, royalty-free, irrevocable, transferable, sublicensable, worldwide right to use such Feedback.

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8. MISCELLANEOUS

1. Notice. Except where expressly provided in this Agreement or the Order, all notices, consents, or approvals required by this Agreement or the Order will be in writing and sent by email, overnight courier, certified or registered mail, overnight delivery requiring a signature upon receipt, or delivery by hand to the parties at the respective addresses set forth in the Order. Notice is effective when received. 

2. Entire Agreement; Amendments. This Agreement constitutes the entire agreement and understanding between the parties hereto and supersedes all prior negotiations, proposals, understandings and agreements, written or oral, as well as any industry custom. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. This Agreement may be executed in two (2) or more counterparts, each will be deemed an original, but all together will constitute one and the same instrument. Company reserves the right to update the terms in this Agreement from time to time without notification to Client. Client’s continued use of the Services after the publication of the amended Agreement shall be deemed as Client’s acceptance of the amended Agreement. Except where otherwise expressly provided in this Agreement, this Agreement may be amended only by the written agreement of both parties.

3. Survival. Any provision of this Agreement, which, by its nature, would survive termination or expiration of this Agreement will survive any such termination or expiration, including, without limitation, those provisions concerning confidentiality, indemnification and limitation of liability.

4. Subcontracting and Assignment. Company may permit any affiliate, independent contractor or other third party to perform any of Company’s obligations hereunder or under the Order provided that Company remains primarily liable for the performance of its obligations. Company may assign, delegate, or transfer this Agreement or any of its rights and obligations hereunder, or the Order or any of its rights and obligations thereunder, without notice to or prior written consent of Client. Client may assign, delegate, or transfer this Agreement or any of its rights and obligations hereunder, or the Order or any of its rights and obligations thereunder, to its affiliate with mutual agreement between Client and Company. Any assignment or transfer in violation of this Agreement is void. This Agreement and the Order will be binding upon and inure to the benefit of all permitted successors and assigns. Nothing in this Agreement or the Order is intended to or will confer upon any third party any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement or the Order.

5. Force Majeure. Except for Client’s obligation to pay amounts owed under this Agreement, neither party will be responsible or in any way liable to the other party, and neither party will have any termination or other rights, arising out of or relating to a Force Majeure Event. If the hosted servers cannot resume operation for more than 45 days after the occurrence of a force majeure event, Client has the right to unconditionally terminate the contract. A “Force Majeure Event” is a failure by the other party to perform any of its obligations under this Agreement if such failure is caused by events or circumstances beyond its reasonable control, including, without limitation, acts of God, war, labor strike, terrorist act, fire, flood, earthquake, landslide, hurricane, typhoon, tsunami, volcanic eruption, inclement weather, power outage, network outage, health epidemic or any law, order, regulation or other action of any governing authority or agency.

6. Governing Law and Forum Selection. This Agreement, the Order and all claims arising out of or related to this Agreement or the Order are governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of New York. Any dispute, claim or controversy arising out of or relating to this Agreement or the Order or the breach, termination, enforcement, interpretation or validity thereof, including, without limitation, the determination of the scope or applicability of this Agreement or the Order to arbitrate, shall be determined exclusively by arbitration in New York, New York before three (3) arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures. Any award, order or judgment pursuant to arbitration (“Award”) is final and may be entered and enforced in any court of competent jurisdiction, and each party shall submit to any court of competent jurisdiction for purposes of the enforcement of any Award. The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including, without limitation, the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. Notwithstanding the foregoing, nothing herein shall prohibit Company from seeking injunctive relief in a court of competent jurisdiction for any breach or threatened breach by Client of the terms of this Agreement or the Order. 

7. General. The rights and remedies provided for herein are cumulative and not exclusive of any rights or remedies that a party would otherwise have. The parties are independent contractors, and this Agreement or the Order does not establish any relationship of partnership, joint venture, employment, franchise or agency between them. Neither party may bind the other or incur obligations on the other’s behalf without the other’s prior written consent. There are no third-party beneficiaries to this Agreement or the Order. No waiver of any breach of any provision of this Agreement or the Order will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof or thereof, respectively, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.