InSpire Holdings, Inc
TERMS OF SERVICE AND ORDERING – SAAS
IMPORTANT: Carefully read these Terms of Service (this “Agreement”) before using the Service (as defined below).
This Agreement creates a binding legal agreement between you (“Customer”) and InSpire Holdings Inc, a California corporation (“InSpire”).
BY USING THE SERVICE, YOU IRREVOCABLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. You also agree to ensure that anyone who uses the Service using your password or login information abides by this Agreement.
IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence, and by fully able and competent to enter into the terms, conditions, obligations, affirmations, representation and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.
1. DEFINITIONS. As used in this Agreement:
1.1 “Anonymized Data” means Customer Data which has been stripped of information potentially identifying Customer or which contains any personal information, and which have been manipulated or combined with other data to provide generalized anonymous information that cannot be reverse-engineered to identify Customer or any other person.
1.2 “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes information derived from or concerning the Service, the System or the Documentation and the terms of this Agreement.
1.3 “Customer Data” means any data, information or information contained in any database, template or other similar document submitted by Customer through the Service or provided by Customer to InSpire as part of the Service.
1.4 “Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms made available by InSpire that describe the features, functionality or operation of the System.
1.5 “Fees” is defined in Section 4.
1.6 “Force Majeure Event” is defined in Section 12.3.
1.7 “InSpire Property” means the Service, System, Anonymized Data, and all other intellectual property created, used or provided by InSpire to Customer pursuant to this Agreement, and all modifications or derivatives thereof or improvements thereto.
1.8 “Quote” means collectively the order documents representing Customer’s initial subscription to the Service (and any subsequent modifications to the subscription agreed to between the parties in writing from time to time) that, upon execution, are incorporated in and made a part of this Agreement from time to time.
1.9 “Service” means the on-line software as a service offerings delivered by InSpire to Customer using the System, as made available by InSpire from time-to-time and as specified in the Quote.
1.10 “System” means the technology, including hardware, software and systems, used by InSpire and its third party suppliers to deliver the Service to Customer in accordance with this Agreement.
1.11 “UserID” is defined in Section 3.1.
1.12 “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.
2. THE SERVICE.
2.1 Subscription to the Service. Conditional on Customer: (a) complying with the provisions of this Agreement, including but not limited to paying the Fees as required by this Agreement; (b) cooperating with the reasonable requests of InSpire; and (c) providing InSpire with access to Customer’s internal systems and any required third party systems (and making all required third party disclosures and obtaining all required third party consents in respect of such access) from which Customer wishes the System to access Customer Data, InSpire hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Service in accordance with this Agreement solely for Customer’s internal business purposes and not for resale or to provide services to third parties. Customer may order the Service under this Agreement by placing written, signed orders on a Quote. Only the execution of a Quote by Customer and by InSpire constitutes a binding contract between those parties. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by InSpire with respect to future functionality or features.
2.2 Professional and Custom Services; Hardware. This Agreement does not include the provision of professional or custom services or hardware products to Customer. Any professional or custom services or hardware products provided by InSpire, including without limitation third party services and hardware products provided by InSpire, shall be subject to InSpire’s then-current standard terms and conditions of purchase.
2.3 Support. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4, InSpire shall use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that InSpire will not have an obligation to provide a correction for all such nonconformities.
2.4 System Updates and Scheduled Downtime. InSpire may update any aspect of the Service or System at any time in its sole discretion. InSpire may schedule downtime for maintenance and upgrades to the System without prior notice but will use commercially reasonable efforts to provide advance notice where practicable.
2.6 Internet Security Disclaimer. Customer acknowledges and agrees that InSpire exercises no control over, and accepts no responsibility for, Internet connectivity outside of InSpire’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.
2.7 Limitation, Suspension or Termination of Access. In addition to other rights and remedies of InSpire under this Agreement, InSpire may suspend, terminate or limit (in InSpire’s sole discretion) Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect InSpire from harm to its reputation or business. InSpire will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, InSpire will restore Customer’s access to the Service when InSpire determines the event has been resolved. Nothing in this Agreement will limit InSpire’s right to take any action or invoke remedies, or will act as a waiver of InSpire’s rights in any way with respect to any of the foregoing activities. InSpire will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service under this Section 2.7.
2.8 Subcontractors. Customer acknowledges and agrees that InSpire may retain the services of independent contractors (“Subcontractors”) from time to time to provide, or to assist Inspire in providing, the Service. Any Subcontractors used by InSpire to provide the Service shall remain under the direction and control of InSpire, and InSpire shall be fully and personally liable for all acts or omissions of the Subcontractors.
3. CUSTOMER’S USE OF THE SERVICE.
3.1 Access and Security Guidelines. Subject to any limitations associated with Customer’s subscription account, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to InSpire for each User. Users may only access and use the Service with the specific UserID. Customer is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Customer is responsible for any and all activity occurring under the UserIDs associated with Users. Customer will promptly notify InSpire of any actual or suspected unauthorized use of the Service. InSpire may require that a UserID be replaced at any time.
3.2 Customer Responsibilities and Restrictions. Customer will, at all times, comply with all applicable local, state, provincial, federal and foreign laws in using the Service. Without limiting the generality of Section 3.1, Customer agrees that Customer will not, and will not permit any person, including without limitation the Users, to:
(a) use the Service other than as permitted by this Agreement;
(b) use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights or any other legal right;
(c) use the Service to upload, collect, transmit, store, use or process, or ask InSpire to obtain from third parties, any data: (i) that Customer does not have the lawful right to copy, transmit, distribute and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); or (ii) for which Customer does not have the consent or permission from the owner of any Personal Information contained therein;
(d) use the Service in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other Personal Information in a misleading manner or for fraudulent or misleading purposes;
(e) use the Service in a manner that is libelous or defamatory, harmful to minors in any way, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
(f) use the Service in a manner that is hateful or discriminatory based on race, colour, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by InSpire;
(g) use the Service to impersonate an InSpire employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(h) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau;
(i) copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service;
(j) use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service; or
(k) interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.
3.3 Customer Data. Customer is solely responsible for the Customer Data and will not provide or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. InSpire may take remedial action if Customer Data violates this Section 3.3, however, InSpire is under no obligation to review Customer Data for accuracy or potential liability.
4. FEES, PAYMENT AND SUSPENSION. As consideration for the subscription to the Service, Customer will pay InSpire the fees (“Fees”) set forth in and in accordance with the Quote. All Fees will be billed in advance on a annual basis and are due upon receipt of invoice, unless otherwise agreed to in the Quote. Overdue amounts will accrue interest at the rate of 12% per annum, or the highest legal interest rate, if less. Customer shall reimburse InSpire for all expenses (including reasonable attorneys’ fees) incurred by InSpire to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on InSpire’s net income. InSpire reserves the right (in addition to any other rights or remedies InSpire may have) to discontinue the Service and suspend all UserIDs and Customer’s access to the Service if any Fees set forth in the Quote are more than thirty (30) days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
5. CONFIDENTIAL INFORMATION.
5.1 Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to such Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use the Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
5.2 Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
6.1 System and Technology. Customer acknowledges that InSpire retains all right, title and interest in and to the InSpire Property, and that the InSpire Property is protected by intellectual property rights owned by or licensed to InSpire. Other than as expressly set forth in this Agreement, no license or other rights in the InSpire Property are granted to the Customer, and all such rights are hereby expressly reserved by InSpire. You agree to grant to InSpire a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Service.
6.2 Customer Data. Customer retains all right, title and interest in and to the Customer Data. Customer grants to InSpire a worldwide, royalty-free, non-exclusive license to use, host, copy, transmit, display, modify and create derivative works of the Customer Data for the purposes of providing the Service to Customer during the Term and for InSpire’s internal business purposes in perpetuity, including training and improving InSpire’s systems and proprietary technology, products and services. Customer also grants InSpire a worldwide, royalty-free, non-exclusive, perpetual license to use, copy, display, modify and process the Customer Data to generate Anonymized Data and acknowledges and agrees that InSpire may utilize and disclose to third parties the Anonymized Data for any purpose.
7. TERM AND TERMINATION.
7.1 Term. Unless otherwise agreed to in the Quote, the term of this Agreement will commence on the Effective Date and continue for one year (the “Initial Term”). Thereafter, this Agreement will be automatically renewed from year to year for additional one year renewal terms (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides written notice to the other party no less than 60 days prior to the expiration of the then-current Initial Term or Renewal Term indicating that it does not wish to renew this Agreement.
7.2 Termination for Default. Either party may terminate this Agreement immediately upon written notice if: (a) the other party materially breaches this Agreement and does not cure such breach (if curable) within 30 days after written notice of such breach; or (b) the other party becomes insolvent or files or has filed against it a petition in bankruptcy.
7.3 Effect of Termination. Upon the termination of this Agreement for any reason, (a) any amounts owed to InSpire under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other party all property (including any Confidential Information) of the other party in its possession or control. InSpire agrees that upon any early termination of this Agreement, InSpire will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by InSpire) for up to 30 days after termination. Thereafter, InSpire will remove all Customer Data from the System and all Customer access to or use of the System and Service will be immediately suspended. The rights and duties of the parties under Sections 3.3, 4 through 6, 7.3 and 8 through 12 will survive the termination or expiration of this Agreement.
8. CUSTOMER WARRANTY. Customer represents and warrant to, and covenants with, InSpire that the Customer Data will comply with all applicable laws relating to personal information in its use of the Service including the provision, disclosure, use, retention and destruction of personal information.
9. DISCLAIMER OF WARRANTIES.
THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY INSPIRE TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. INSPIRE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. INSPIRE DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, INSPIRE EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
INSPIRE IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY PROVIDER OF ANY SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY INSPIRE, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY INSPIRE.
THE SERVICES ARE OFFERED AND CONTROLLED BY INSPIRE FROM ITS FACILITIES IN THE UNITED STATES. INSPIRE MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
10.1 By InSpire. If any action is instituted by a third party against Customer based upon a claim that the Service or System, as delivered, infringes any third party intellectual property rights in the United States, InSpire shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. InSpire may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using the Service, (b) replace or modify the System or Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. InSpire shall have no liability to Customer for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Service or System (i) after it has been modified by Customer or a third party without InSpire’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by InSpire. This Section 10.1 sets forth the entire obligation of InSpire and the exclusive remedy of Customer against InSpire or any of its suppliers for any alleged infringement or adjudicated infringement of any patent, copyright or other intellectual property right by the Service or System.
10.2 By Customer. If any action is instituted by a third party against InSpire arising out of or relating to: (a) Customer’s use of the Service or System (including claims by any customer or business partner of Customer); (b) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (c) an allegation that the Customer Data, or the use of Customer Data by InSpire pursuant to this Agreement, infringes any third party intellectual property right or other right of a third party, or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of InSpire and shall pay all damages attributable to such claim which are finally awarded against InSpire or paid in settlement of such claim. Customer shall have no obligation under this Section 10.2 for any claim or action that is described in Section 10.1 or arises out of a breach of this Agreement by InSpire.
10.3 Conditions. Any party that is seeking to be indemnified under the provision of this Section 10 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 11 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (i) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (ii) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (iii) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
11. LIMITATION OF LIABILITY. The following provisions have been negotiated by each party , are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
11.1 Amount. INSPIRE’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO INSPIRE UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL INSPIRE’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
11.2 Type. IN NO EVENT SHALL INSPIRE BE LIABLE TO CUSTOMER FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (C) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (D) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL INSPIRE BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
11.3 No Jury Trial. CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
11.4 No Participating in Class Action. CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
11.5 Limitation of Time. Customer agrees that it will not bring a claim under or related to this Agreement more than twelve (12) months from when such claim first arose.
12. GENERAL PROVISIONS
12.1 Publicity. InSpire may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Customer agrees to allow InSpire to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of InSpire and user of the Service.
12.2 Assignment. Customer may not assign this Agreement to a third party without InSpire’s prior written consent not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer. InSpire may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this Section 12.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
12.3 Force Majeure. If the performance of any obligation under this Agreement, except non-payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, power surges or failures, Internet connectivity or the act or omission of any third party (each a “Force Majeure Event”), such party will be excused from such performance to the extent necessary. Each party will use reasonable efforts to implement industry standard procedures to minimize disruption of such Force Majeure Events and will use reasonable efforts to remove such causes of non-performance
12.4 Choice of Law; Jurisdiction. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties hereby agree to attorn to the exclusive jurisdiction of the courts of California. Notwithstanding the foregoing, InSpire may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by InSpire through injunctive relief and other equitable remedies without proof of monetary damages.
12.5 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (i) to InSpire, by email at email@example.com or by certified mail at PO BOX 8237, Berkeley, CA 94707; or (ii) to Customer, by email or by certified mail at the addresses set forth in the Quote. Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address. Notices will be deemed to have been given upon receipt, or when delivery is refused.
12.6 Entire Agreement. This Agreement, including the Quote, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
12.7 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. 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.
12.8 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.