Terms

Logicor Terms of Service

Last Updated: November 4, 2022

These Logicor Terms of Service (“Terms” or “Agreement”), including this introduction, the General Terms and Conditions set forth below, and the terms set forth on any mutually executed orders (each, an “Order”) and/or statements of work (“SOWs”), govern your use of the proprietary products and software service offerings, including all software applications, systems, data facilities, as well as any professional services, provided to you by Simpler Postage, Inc. (d/b/a Logicor) and its subsidiaries, affiliates and other related entities (together, the “Company”).

The Terms constitute a legal contract between you (as the “Customer”) and the Company regarding your use of all Company Products and Services (as defined below). Please carefully read these Terms. By executing an Order, you signify that you have read, understood, and agree to be bound by the Terms, which hereby incorporate the following:

The provisions of these Terms of Service;
The provisions of any Order, quote, or license agreement that has been issued by Company to you;
The provisions of any SOW that has been issued by the Company to you; and
Any additional guidelines and any future modification to any of the foregoing that may be issued by Company from time to time.

Company reserves the right, at its sole discretion, to change, supplement or remove all or part of these Terms at any time. You agree to review these Terms periodically for changes. When we change the Terms in a material manner, we will update the “last modified” date at the top of this page. If any such revision is unacceptable to you, your only remedy is to terminate your Agreement with the Company. Your continued use of the Company Products and Services following any revision to these Terms will mean you accept all of the updated terms and conditions.

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES DISPUTES BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT A JURY TRIAL OR CLASS ACTION.

By using the Company Products and Services (as defined below), you agree to the General Terms and Conditions set forth below.

General Terms and Conditions

Definitions.

“Company Products and Services” means collectively, the proprietary products and software service offerings made available by Company, including without limitation Company’s software products, implementation services, product support, and/or professional services used to develop and deliver multi-carrier shipping software solutions.

“Company Marks” means the various trademarks, service marks, names, and designations used in connection with the Company Products and Services.

“Customer Application” means a software application that interfaces with the Company Products and Services and includes any services (web-based or other services) made available by Customer in connection with that software application.

“Customer Data” means data and other information made available to Company through the use of the Company Products and Services under this Agreement, including Customer’s Confidential Information.

“Customer Technology” means the Company Products and Services as well as all systems and other technology owned or licensed by Company, including all Documentation, improvements, updates, upgrades, additions developed by or for Company for use in the Company Products and Services, including all associated Intellectual Property and Intellectual Property Rights therein.

“Documentation” means all of the instructions, code samples, on-line help files and technical documentation made available by Company for the Company Products and Services.

“Intellectual Property” means all algorithms, application programming interfaces, software code (in any form including source code and executable or object code), user interfaces, concepts, databases and data collections, designs, diagrams, documentation, drawings, flowcharts, formulas, ideas, discoveries and inventions (whether or not patentable or reduced to practice) and all enhancements, modifications and derivatives thereof, know-how, research and development plans, methods, models, network configurations and architectures, assemblers, applets, compilers, procedures, processes, protocols, schematics, specifications, subroutines, techniques, tools, and other forms of technology.

“Intellectual Property Rights” mean all intellectual and industrial property rights of every kind and description anywhere in the world, whether recorded or registered in any manner, or otherwise, including without limitation or prejudice to the foregoing generality, all U.S. and non-U.S. (a) rights in or to trademarks and service marks (whether or not recorded or registered in any manner), design rights, business names, trade names, brand names, domain names and other designations of source of origin, together with all goodwill related to the foregoing, (b) patents and patent applications, (c) rights in or to copyrights, (d) rights in or to trade secrets and confidential information, including, without limitation, know-how, technology methods, ideas and inventions, (e) rights in database and software, mask works, and computer code (whether in source code, object code or any other form), (f) all applications and registrations of any of the foregoing, and (g) all other legal rights anywhere in the world protecting such intangible property.

Services.

Products and Services. Subject to the terms of this Agreement and the applicable Order, Company shall use commercially reasonable efforts to provide Customer with the Company Products and Services identified in each Order and/or SOW signed by Company and Customer.

Professional Services. Customer may contract with Company to perform professional services. The specific details of the professional services to be performed will be determined on a per-project basis and will be described in the applicable Order or SOW. Customer may request in writing that reasonable revisions be made with respect to the professional services set forth in the applicable Order or SOW, and Company will deliver to Customer a written proposal reflecting Company’s reasonable determination of the revised professional services, delivery schedule, and payment schedule, if any, that applies to the requested revisions.

Restrictions and Responsibilities.

Use Restrictions. Except as expressly permitted in this Agreement or in the applicable Order, Customer will not, and will not permit any of Customer’s affiliates or any third parties to: (a) transfer, sell, rent, lease, license, sublicense, distribute, or otherwise permit third parties to access or use the Company Products and Services; (b) use the Company Products and Services in connection with the provision of services to third parties; (c) copy, reproduce, 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 Company Products and Services or any software Documentation or data related to the Company Products and Services; (d) modify, translate, or create derivative works based on the Company Products or Services; (e) circumvent or disable any security or other technological features or measures of the Company Products and Services, or attempt to probe, scan, or test the vulnerability of a network or system, breach security or authentication measures, or gain unauthorized access to any service, system, or network; (f) upload or provide for processing, or use the Company Products and Services to store, display, or transmit any information or material that is illegal, defamatory, offensive, abusive, obscene, or tortious, or that violates privacy or intellectual property rights; (g) use the Company Products and Services to harm, threaten, or harass another person or organization or in any way that violates applicable laws or regulations; (h) use the Company Products and Services to create, send, store, run, or distribute any viruses, worms, Trojan horses, or other disabling code, malware component, or code or program harmful to a network or system; or (i) alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Products and Services.

Protection Against Unauthorized Use. Customer will and will ensure that Customer’s affiliates and permitted third parties, use reasonable efforts to prevent any unauthorized use of the Company Products and Services, and Customer will notify Company in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Company Products and Services directly or indirectly through Customer, Customer will be responsible for all such unauthorized use and any resulting damages and will take all steps reasonably necessary to terminate the unauthorized use. Customer will assist and cooperate Company with any actions taken to prevent or terminate unauthorized use of the Company Products and Services. Company has no obligation to monitor Customer’s use of the Company Products and Services; provided, however, Customer grants Company full rights to, in its sole discretion, monitor Customer’s use of the Company Products and Services and Customer Applications to ensure there is no violation of this Agreement; provided further, Company may prohibit any use of the Company Products and Services by Customer or any end user that Company believes may be (or alleged to be) in violation of the foregoing or any other terms of this Agreement.

Equipment Maintenance. Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Company Products and Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and any other equipment necessary to facilitate the Company Products and Services (collectively, the “Equipment”). Customer will also be responsible for maintaining the security of the Equipment, customer’s account and password (including, but not limited to, administrative and user passwords), and Customer files.

Reservation of Rights. Company retains exclusive ownership of all right, title, and interest, including all Intellectual Property Rights, in, to and under the Company Products and Services, the Company Technology, and any deliverables created by Company as part of the Company Products and Services or other professional services, together with all modifications, updates, customizations, enhances, improvements, Documentation, Company Marks, and derivative works of any of the foregoing. Customer’s rights to use the Company Products and Services, the Company Technology, and any other deliverables are limited to those expressly set forth in this Agreement and the applicable Order, and no other rights (express, implied, or otherwise) are granted to you. Company reserves all other rights in and to the Company Technology.

Feedback. Customer and its affiliates and/or other permitted third parties may, on an entirely voluntary basis, submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the operations, functionality, or features of the Products and Services or other Company products or services (collectively, “Feedback”). Customer grants Company a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, incorporate into the Products and Services, copy, modify, publish, perform, translate, creative derivative works from, sublicense, distribute, and otherwise exploit Feedback without restriction. Feedback is not Customer’s Confidential information.

Confidentiality.

Definition. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed (directly or indirectly) by either party that is in written, graphic, machine readable or other tangible form (including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment) and is marked or otherwise designated as “Confidential” or “Proprietary” or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure.

Exceptions. Confidential Information does not include any information which: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure by the disclosing party to the receiving party; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure by the disclosing party to the receiving party through no wrongful action or inaction of receiving party; (iii) is in the rightful possession of the receiving party without confidentiality obligations at the time of disclosure by the disclosing party to the receiving party as shown by the receiving party’s then-contemporaneous written files and records kept in the ordinary course of business; (iv) is obtained by the receiving party from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development.

Non-Disclosure. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may only disclose the Confidential Information of the other party, in whole or in part, to its officers, employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential either (i) per the terms of this Section, or (ii) by other written agreement with terms that are no less stringent than the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to that portion of the Confidential Information that is legally required to be disclosed and is permitted by applicable law.

Return; Destroy; Protect. On the disclosing party’s request, the receiving party must return or destroy all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party other than: (a) records the receiving party has a separate legal right or obligation to retain; and (b) copies of Confidential Information created in the ordinary course of the receiving party’s business and retained in accordance with its internal document retention and information technology policies. To the extent the receiving party retains information disclosed by the disclosing party, the receiving party will continue to protect such information in accordance with Section 4.3: (x) for so long as it meets the definition of Confidential Information above; (y) if it constitutes a trade secret for so long as required under applicable law, and/or (z) if it constitutes personal data received from the disclosing party for so long as required by applicable law.

Customer Data. Customer Data is Customer’s property and, as between Customer and Company, Customer retains exclusive ownership of all right, title and interest in Customer Data. Customer grants Company a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sublicense, index, store, aggregate, publish, distribute and display: (a) Customer Data as required to provide the Company Products and Services and account management services; (b) use Customer Data and other information received from Customer to improve and enhance the Company Products and Services and for other development, diagnostic and corrective purposes in connection with the Company Products and Services and other Company offerings; and (c) disclose such data solely in aggregate or other de-identified form in connection with its business, provided that any such data is not publicly identified or identifiable as originating with Customer or any individual person. Customer is responsible for the content, accuracy, availability, appropriateness, and legality of Customer Data and any other information Customer may access using the Company Products and Services.

Payment of Fees.

Fees. Customer agrees to pay all fees set out in the applicable Order and/or SOW and any other amounts payable under this Agreement (the “Fees”). Except as otherwise provided herein or in the applicable Order or SOW, all Fees are noncancelable and nonrefundable. In the event that Customer does not utilize the Company Products and Services during the Term, Customer shall not have the right to any refund of the Fees or to carry forward any unused Company Products or Services to a future Term. If Customer’s use of the Company Products and Services exceeds the capacity set forth on the applicable Order or otherwise requires the payment of additional Fees (per the terms of this Agreement), Company will invoice Customer for such additional usage, and Customer agrees to pay the additional Fees in the manner provided herein. Company reserves the right to increase all recurring subscription or support fees on ninety (90) days’ written notice; if Customer does not consent to such change, Customer may terminate the applicable subscription or support term. Unless otherwise stated in the applicable Order or SOW, all Fees are exclusive of applicable federal, state, or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, import fees and taxes, license fees and surchargers, whether charged to or again Company, and all such taxes, fees, and charges will be the sole responsibility of and payable by Customer. Customer will not withhold any taxes or other charges from any amounts due to Company.

Payment Terms; Billing. Except as otherwise provided in the applicable Order or SOW, full payment for invoices issued must be received by Company within thirty (30) days after issuance of the invoice (which may be sent by email). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is lower, plus all expenses of collection including but not limited to reasonable attorneys’ fees. If Customer fails to pay timely any Fees due hereunder, Company will (without limiting its other rights) be entitled to suspend the Company Products and Services associated with Customer’s account without prior notice to Customer. If payment is not thereafter rendered within thirty (30) days of delivery of notice to Customer of such failure, Company may immediately terminate this Agreement. Customer will notify Company in writing in the event Customer disputes any portion of any fees paid or payable by Customer under this Agreement. Customer will provide such notice to Company within sixty (60) days of the applicable charge, and the parties will work together to resolve the applicable dispute promptly. Upon expiration of the sixty- (60)-day period described in this Section, Customer will not be entitled (and hereby waives any right) to dispute any fees paid or payable by Customer. Company will not have any liability whatsoever for any damage, liabilities, losses (including any lost profits) or any other consequences that Customer may incur with respect to any suspension or termination of the Company Products and Services pursuant to this Section 5. If Customer’s payment method choice is a credit card for any given payment, a standard convenience fee of three and a quarter percent (3.75%) will apply.

Future Functionality. Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Company regarding future functionality or features.

Term; Termination.

Term. The Term of this Agreement will commence on the Effective Date and continues through the Initial Service Term as specified in the applicable Order and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current Term.

Termination. Company may also terminate this Agreement for any reason upon thirty (30) days’ prior written notice to Customer. In addition to any other remedies it may have, either party may terminate this Agreement or an applicable Order or SOWs upon written notice (or without notice in the case of nonpayment), if the other party (a) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within 30 days after written notice describing the breach; or (b) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets. In addition, Company may suspend or terminate the Company Products and Services upon notice for cause if: (x) there is an unusual spike or increase in Customer’s use of the Company Products and Services for which there is reason to believe such traffic or use is fraudulent or unauthorized or is negatively impacting the operating capacity of the Company Products and Services; or (y) Company determines, in its sole discretion, that its provision of any of the Company Products and Services is prohibited by applicable law or has become impractical or unfeasible for any legal or regulatory reason.

Effect of Termination; Survival. Upon termination or expiration of this Agreement, Company has no obligation to provide any Company Products or Services, and all rights and licenses granted to Customer will immediately terminate. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment or other liabilities, confidentiality obligations, warranty disclaimers, and limitations of liability.

Warranties and Disclaimers.

Authority. Each of Company and Customer represents and warrants that (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.

Services Warranty. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Company Products and Services in a manner which minimizes errors and interruptions in such Products and Services and shall perform implementation, support, and professional services in a professional and workmanlike manner. Company Products and Services may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE. COMPANY DOES NOT WARRANT THAT THE COMPANY PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE COMPANY PRODUCTS AND SERVICES. EXCEPT AS SET FORTH IN THIS SECTION, THE COMPANY PRODUCTS AND SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” TO THE FULLEST EXTENT PERMITTED BY LAW.

Indemnification.

By Company. Company at its own expense will defend or settle any claims, actions and demands brought by third parties against Customer and Customer’s subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively, the “Customer Indemnified Parties”) where the third party expressly asserts that the Company Products and Services: infringes such third party’s trademark or copyright arising under the laws of the United States, or Company misappropriated such third party’s trade secrets in the development of the Software (collectively, “Claims”). Customer must give written notice of the Claim to Company promptly after Customer becomes aware of the Claim, and Company’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The foregoing obligations do not apply with respect to portions or components of the Company Products and Services (a) not supplied by Company, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified after delivery by Customer or combined with other products, processes or materials where the alleged infringement relates to such combination, (d) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (e) where Customer’s use of the Company Products and Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are 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 Company Products and Services 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 Company Products and Services, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and provide Customer a refund of any prepaid, unused fees for the Services.
By Customer. Customer at its own expense will defend or settle any third party claims, actions and demands against Company and Company’s subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively, the “Customer Indemnified Parties”) where a third party asserts that the Customer Data or its use has infringed the rights of a third party or violated applicable law; provided that in any such case Company gives written notice of the Claim to Customer promptly after Company becomes aware of such Claim, and Customer’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice.

Limitation of Liability.
1. NO CONSEQUENTIAL DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AGENTS AND SUPPLIERS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF THEY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS AGREEMENT WILL LIMIT CUSTOMER’S LIABILITY FOR MISAPPROPRIATION OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS IN THE COMPANY PRODUCTS AND SERVICES.
2. LIMITATION ON DAMAGES. WITH THE EXCEPTION OF A PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY DURING THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5.

Miscellaneous.

Assignment. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns. Customer may not assign or otherwise transfer this Agreement without the prior written consent of Company, which shall not be unreasonably withheld or delayed. Company may assign or otherwise transfer this Agreement upon written notice to Customer. Any other purported assignment shall be void.

No Agency. No agency, Customership, joint venture, franchise, or employment relationship is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party in any respect whatsoever to any third party.

Notices. All notices under this Agreement must 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 facsimile or 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 to each party at its respective address provided on the initial Order Form.

Enforceability. If any provision of this Agreement is adjudicated invalid or unenforceable, this Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. To the extent permitted by applicable law, the parties waive any provision of law that would render any clause of this Agreement prohibited or unenforceable in any respect.

Compliance with Laws. Each party shall perform all of its obligations under this Agreement in compliance with all foreign, federal, state, and local statutes, orders and regulations, including those relating to privacy and data protection, at all times.

Export Compliance. The Company Products and Services may be subject to export laws and regulations of the United States and other jurisdictions and may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. Each party represents that is not named on any government denied-party list. Customer further represents that it is not located, and will not access or use, or permit any affiliate or permitted user to access or use, any Company Technology in any U.S.-embargoed country or region (including but not limited to Cuba, Iran, North Korea, Sudan, Syria or Crimea), or access or use any Company Technology in violation of any applicable U.S., local or foreign export laws or regulations. Customer agrees that Company may suspend all or any part of the Company Products and Services immediately if Company reasonably believes Customer is accessing or using the Company Products and Services in violation of any export laws or regulations.

Force Majeure. If the performance of this Agreement or any obligations (other than payment obligations) hereunder is prevented or interfered with by any act or condition beyond the reasonable control of a party hereto, that party upon giving prompt notice to the other party shall be excused from such performance during such occurrence.

Integration. This Agreement is the complete 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. This Agreement shall supersede the terms of any purchase order, agreement, or other business form executed prior to the Effective Date.

Amendment; Counterparts. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement. From time to time, Company may modify this Agreement. Unless another agreement between the parties supersedes this Agreement, changes become effective for Customer upon renewal of the then-current subscription term or entry into a new Order after the updated version of this Agreement goes into effect.

Governing Law and Jurisdiction; Attorney Fees. This Agreement shall be governed by the laws of the State of Utah without regard to its conflict of law’s provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement must be brought in the federal or state courts in Utah, and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorneys’ fees and expenses and court costs.

Claims. CUSTOMER AND COMPANY AGREE THAT ANY CAUSE OF ACTION CUSTOMER MAY HAVE ARISING OUT OF OR RELATED TO THE COMPANY PRODUCTS AND SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

Class Action / Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE COMPANY PRODUCT AND SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. CUSTOMER AGREES THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.